How Long Do I Have To File a Wrongful Death Lawsuit?

When someone loses a loved one due to the wrongful actions of another party, whether through negligence, recklessness, or even intentional harm, the emotional pain is often compounded by financial and legal worries. At Nimmons Malchow Johnson Injury Lawyers, we understand the complexities and challenges families face in the wake of such a tragedy. One common question families ask is, “How long do I have to file a wrongful death lawsuit?”

In both Georgia and South Carolina, where we serve clients, wrongful death laws outline specific deadlines that families must follow to protect their right to pursue compensation. Understanding these timelines is crucial because missing the deadline, known legally as the statute of limitations, can mean forfeiting the right to hold the responsible party accountable in court.

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Defining Wrongful Death in Georgia and South Carolina

Before diving into deadlines, it’s helpful to clarify what constitutes a “wrongful death” under Georgia and South Carolina law. Wrongful death occurs when a person’s death is caused by the “wrongful act, neglect, or default” of another. It can arise in a variety of situations, including car accidents, workplace injuries, medical malpractice, or even criminal acts like assault. Essentially, it’s a claim that the deceased person would have been able to pursue had they survived the injury, and it’s carried forward by their surviving family members.

The Importance of the Statute of Limitations

The statute of limitations is a legal timeframe within which certain types of lawsuits must be filed. In the case of wrongful death, these statutes exist to ensure that cases are brought promptly, while evidence is fresh and witnesses are available. Failing to file within the established period usually results in a loss of the right to pursue the claim, regardless of its merits.

The time limit for filing a wrongful death lawsuit varies from state to state, and understanding the precise deadlines in Georgia and South Carolina is essential for families seeking justice.

Leland Malchow

Attorney - Partner

Chris Johnson

Attorney - Partner

Dane Anderson

Associate Attorney

Bailey Marshall

Associate Attorney

Wrongful Death Statutes of Limitations in Georgia

In Georgia, the statute of limitations for wrongful death claims is generally two years from the date of death. This means that the family or the deceased person’s estate has exactly two years to file a lawsuit. While this may seem like ample time, wrongful death cases often require extensive investigation, especially in cases involving multiple parties or complex issues such as medical malpractice or corporate negligence. It’s advisable to begin the process as soon as possible to ensure all evidence is gathered in a timely manner.

However, there are some notable exceptions and nuances in Georgia law:

Criminal Cases Impacting the Statute

If the death resulted from a crime, such as homicide, and the criminal case is ongoing, the statute of limitations for the wrongful death claim may be “tolled,” or paused, until the criminal case is resolved. Once the criminal proceedings conclude, the two-year clock for the wrongful death claim starts ticking again.

Claims Involving Government Entities

If a wrongful death involves a government entity, such as a death resulting from a city bus accident or the actions of a government employee, shorter filing deadlines may apply, typically within six months to one year. Filing a claim against a government entity also involves a specific procedure that differs from standard wrongful death cases.

Survival Action Claims

Georgia law allows a separate but related claim called a “survival action,” which seeks damages for the pain and suffering experienced by the deceased before they passed. Survival actions must also be filed within the same two-year timeframe, but as with wrongful death claims, exceptions can apply.

Wrongful Death Statutes of Limitations in South Carolina

South Carolina’s wrongful death statute of limitations differs slightly from Georgia’s. In South Carolina, families have three years from the date of death to file a wrongful death lawsuit. This statute applies to most wrongful death cases, including those involving car accidents, medical malpractice, and other forms of negligence.

As in Georgia, however, there are particular circumstances in South Carolina that may affect the statute of limitations:

Government Claims

If the wrongful death involves a government agency, such as a state or city-run facility or a public employee, the family must file a “Notice of Claim” within a shorter period, often six months to one year, depending on the specific agency involved. The formal lawsuit against the government entity must then follow strict guidelines.

Cases Involving Minors

If the individual entitled to bring the claim is a minor, South Carolina law may extend or “toll” the statute of limitations until the minor reaches the age of 18. This can give the minor additional time to file, depending on the circumstances of the case.

Discovery Rule in Medical Malpractice

In cases where wrongful death results from medical malpractice, South Carolina law may apply a “discovery rule.” This rule acknowledges that some injuries leading to wrongful death aren’t immediately apparent. If the cause of death wasn’t immediately known, the statute of limitations might begin from the date the family discovered, or reasonably should have discovered, that malpractice led to their loved one’s death. However, there’s an overarching limit, known as the statute of repose, that prevents wrongful death claims from being filed more than six years after the date of the incident, regardless of when it was discovered.

Factors Affecting Your Case’s Timeline

While understanding the statute of limitations is critical, there are also practical factors that impact the timeline of a wrongful death case. Investigations take time, especially if the case involves complex issues or multiple defendants. Witnesses need to be located and interviewed, and experts may need to be consulted. All of these steps are essential to building a strong case but can add to the time required.

Additionally, obtaining critical records, such as medical records or police reports, can sometimes experience delays, as can working through administrative steps if the case involves a government entity.

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Steps to Take if You’re Considering a Wrongful Death Claim

If you are considering filing a wrongful death lawsuit in Georgia or South Carolina, the most important step is to seek legal guidance as soon as possible. Here are some steps to consider:

Gather Documentation

Collect any relevant documentation, including medical records, police reports, and any correspondence related to the death. This helps establish the initial foundation of the case.

Identify Witnesses

Witnesses play a crucial role in any legal case. Identifying and securing witness testimony as early as possible can be invaluable, especially if the case goes to trial.

Consult with Legal Counsel

Engaging an attorney experienced in wrongful death cases in Georgia and South Carolina allows you to receive guidance tailored to the unique circumstances of your case. An attorney can help navigate the legal complexities, such as determining whether the statute of limitations has been tolled or if there are multiple claims (such as a survival action) that need to be filed.

Avoid Delay

Wrongful death cases can be emotionally and financially demanding, but it’s important to avoid delay. The sooner an attorney begins working on your case, the better prepared you’ll be for any legal challenges that may arise.

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What Damages Can Be Recovered in a Wrongful Death Case?

In both Georgia and South Carolina, families may seek compensation for various damages in a wrongful death case. These typically include:

Medical Expenses: Any medical costs incurred as a result of the injury leading to death.

Funeral and Burial Costs: Costs associated with laying the loved one to rest.

Lost Wages and Benefits: Compensation for the financial support that the deceased would have provided.

Pain and Suffering: In some cases, compensation for the deceased’s pain and suffering before death may be pursued.

Loss of Companionship: Families may seek damages for the loss of the deceased’s companionship, guidance, and support.

These damages aim to provide some relief to families who have experienced significant emotional and financial hardship due to the loss of their loved one.

Taking Action on Your Wrongful Death Claim

No legal action can ever replace the loved one you’ve lost. But a wrongful death lawsuit can provide a measure of justice and financial security that helps families begin to rebuild their lives. If you’re facing the aftermath of a wrongful death in Georgia or South Carolina, we’re here to answer your questions and help you understand your options.

Timing is critical in wrongful death cases, and understanding the statute of limitations in your state is a vital first step. Don’t wait to take action—reach out to a legal professional who can assess your case, guide you through the process, and ensure that you meet all necessary deadlines. At Nimmons Malchow Johnson Injury Lawyers, we are committed to supporting families during these difficult times and helping them pursue the justice they deserve.