Wrongful Death Actions
When someone dies as a result of the negligence of another, the representative of the decedent's estate such as an Administrator or Executor may be able to bring a wrongful death action. Wrongful death claims generally have a shorter statute of limitations than other negligence claims in North Carolina, so it is important to pursue the action promptly.
Recovery from a wrongful death action is distributed in accordance with the provisions of the Intestate Succession Act set forth in Chapter 29 of the North Carolina General Statutes which may or may not coincide with the distribution provisions set forth in the decedent's will. For example, proceeds from recovery of a wrongful death action for a person who dies with a spouse and no children go 100% to the spouse under the terms of the Intestate Succession Act even if the decedent's will provides for 75% of his estate to go to his spouse and 25% to his brother. Under this scenario, the brother would receive none of the wrongful death proceeds.
Wrongful death recoveries are not considered assets of the estate and therefor are not subject to claims of creditors except as set forth in the Wrongful Death Act in Chapter 28A of the North Carolina General Statutes. Thus, if wrongful death proceeds are the only asset available and the decedent had no other assets, the representative of the estate is not required to publish notice to creditors in the newspaper.
The North Carolina Wrongful Death Act provides limits on the amount of medical bills and funeral expenses which must be paid from wrongful death proceeds. However, federal law trumps North Carolina law, so entities such are Medicare are not subject to those limits. It is conceivable that Medicare could take an entire wrongful death settlement. Medicare frequently reduces their lien simply because the estate has hired an attorney to represent it in the wrongful death action. Also, your attorney may be able to request a further reduction of the Medicare lien through an appeal if the circumstances warrant. Since Medicare laws can be very complicated, it is important to have your lawyer assist you in determining how much of the wrongful death proceeds must be paid to Medicare.
Your attorney can also assist you when dealing with other liens asserted in wrongful death actions such as TRICARE, Medicaid and self-funded insurance plans.
Some individuals may be prohibited from recovering under the North Carolina Wrongful Death Act such as parents who had abandoned the care and maintenance of their child, individuals whose negligence contributed to the death of the decedent, the decedent's slayer, or a spouse who had obtained a judicial separation from the decedent, also known as a divorce from bed and board, prior to the decedent's death.
Quinn Law Firm, PLLC can help you understand your legal rights and assist you in making a wrongful death claim. Call today for a free initial consultation!