Who is allowed to bring a wrongful death claim for a child, and do both parents have to agree? – North Carolina

Short Answer

In North Carolina, a wrongful death case is brought by the child’s estate’s personal representative (the executor or administrator), not automatically by a parent. Parents are often the people who ask the court to be appointed, and they are commonly the beneficiaries, but the lawsuit itself is filed in the name of the estate through that personal representative. Both parents do not have to “agree” for the case to be filed, but disagreements can affect who gets appointed and how any settlement is approved and distributed.

Understanding the Problem

In a North Carolina wrongful death case involving a child, the key question is: who has the legal authority to start the lawsuit after the child dies, and whether both parents must consent to that filing. This issue usually comes up when a parent wants to move quickly after a fatal crash, but there is another parent who is unavailable, disagrees, or has a different view about the claim. The answer turns on estate authority (who can act for the child’s estate) and how North Carolina treats parents as heirs when a child dies without a spouse or children.

Apply the Law

North Carolina treats a wrongful death claim as an estate claim. That means the case is filed by the personal representative of the child’s estate (an “administrator” if there is no will, or an “executor” if there is a will). Parents may be the people who ask the Clerk of Superior Court to appoint them, and parents are often the heirs who receive the net proceeds, but the parent is not the plaintiff just because of the parent-child relationship.

Practically, the main forum at the start is usually the Clerk of Superior Court in the county where the estate is opened (estate administration). The personal representative then has authority to hire counsel, investigate the death, and file the civil wrongful death lawsuit in the appropriate trial court. A common time pressure in wrongful death matters is the two-year statute of limitations that often applies to wrongful death claims in North Carolina, so appointment and investigation should not be delayed.

Key Requirements

Proper plaintiff: The wrongful death claim must be brought by the child’s personal representative (estate administrator/executor), not by a parent acting only as a parent.
Estate authority first: Someone must open the child’s estate and receive letters (letters of administration or letters testamentary) so there is legal authority to act for the estate.
Heirs and distribution: Even though the estate brings the case, the net proceeds are generally distributed to heirs under North Carolina’s intestate succession rules (often the parents when the child had no spouse or descendants), subject to allowed costs and claims handled through the estate process.

What the Statutes Say

N.C. Gen. Stat. § 29-15 (Intestate succession; shares of persons other than a surviving spouse) – Explains how an intestate estate is divided, including the rule that when a decedent has no spouse and no descendants, surviving parents generally take in equal shares.
N.C. Gen. Stat. § 1-539.21 (Parent-child immunity abolished in motor vehicle cases) – Confirms that the parent-child relationship does not automatically bar a wrongful death claim arising from a motor vehicle incident in certain situations.

Analysis

Apply the Rule to the Facts: Here, the reported facts involve a child struck by a car and dying at the scene. Under North Carolina practice, the wrongful death claim would be filed by the child’s estate’s personal representative, so the first legal step is usually opening an estate and getting the correct letters from the Clerk of Superior Court. If both parents are living, they are often the heirs who ultimately share in the net recovery under North Carolina intestate rules, but the case can still move forward even if one parent does not agree—because the authority to sue comes from the estate appointment, not from unanimous parental consent.

Process & Timing

Who files: The person seeking to act for the child’s estate (often a parent) petitions to be appointed as administrator. Where: The Clerk of Superior Court in the county where the estate is opened. What: Estate opening paperwork and an application to be appointed; the clerk issues letters of administration (or letters testamentary if there is a will). When: As soon as possible so the claim can be investigated and filed before the wrongful death limitations period expires (often two years).
Next step: The personal representative (through counsel) investigates liability and insurance, gathers records, and then files the wrongful death lawsuit in the proper North Carolina trial court. If there is a settlement opportunity, the personal representative typically cannot treat it like a private agreement; it must be handled as an estate matter with required approvals.
Final step: After settlement or judgment, the personal representative pays allowed case expenses and handles any required estate administration steps, then distributes the net proceeds to the heirs under North Carolina law (often both parents in equal shares when the child had no spouse or descendants).

Exceptions & Pitfalls

Parent disagreement about who serves: If both parents want control (or one objects), the dispute is usually addressed in the estate appointment process before the Clerk of Superior Court. The case is not decided by “both parents must sign,” but by who is appointed and what fiduciary duties that person owes.
Settlement approval issues: A personal representative has duties to all heirs and must handle settlement funds through the estate process. Disagreements between parents can slow approval and distribution if not addressed early.
Heirship and paternity questions: If legal parentage is disputed, that can affect who qualifies as an heir and may require additional court proceedings before funds can be distributed.

For more background on who can file, see who is allowed to file a wrongful death case. For how proceeds are handled after a resolution, see how wrongful-death settlement proceeds are divided between heirs.

Conclusion

In North Carolina, a wrongful death claim for a child is brought by the child’s estate through the personal representative, not automatically by a parent. Both parents do not have to agree for the case to be filed, but disputes can affect who gets appointed and how any settlement is approved and distributed. The practical next step is to open the child’s estate and have the Clerk of Superior Court appoint a personal representative early enough to meet the wrongful death filing deadline (often two years).

Talk to a Wrongful Death Attorney

If you’re dealing with the death of a child after a crash and questions about who can file the case and how parents’ rights work, our firm has experienced attorneys who can help explain the estate steps, timelines, and options. Call us today at [CONTACT NUMBER].

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.