Who Receives Wrongful Death Proceeds in North Carolina?

Handling estates involving wrongful death proceeds can be somewhat more complex than a standard estate administration.  Instead of relying on the law of the State of domicile for all matters it is important to look at the law of the State where the accident occurred.  Even where the accident occurred in the same State as the Decedent’s domicile, Statutes may trump the Decedent’s Last Will and Testament.    

 In most estate administration matters the laws of the State where the decedent was domiciled control.[1]  For those that don’t know, domicile is a person’s legal home.  Generally physical presence in the State and the intent to have that location be the person’s home is all that is required to establish domicile. 

 In the case of a wrongful death, the laws of the State where the accident occurred may trump the State of domicile.[2]  For example, if a South Carolina resident were to die in a car accident in North Carolina, the laws of North Carolina would control the distribution of wrongful death proceeds.[3]

 Also, in almost all estate administration matters a Decedent may circumvent the intestate laws of the State by having a Last Will and Testament.  The Will can establish the executor, guardian and beneficiaries of the estate but does not control who may receive wrongful death proceeds.  In North Carolina the wrongful death proceeds are distributed based upon intestate succession and never become a part of the estate.[4]  This is useful in that the proceeds may not be subject to creditors but may distribute funds to individuals that had been otherwise disinherited by the Decedent’s Last Will and Testament. 

 Different States have different intestate succession laws so an out of State wrongful death may result in considerably different distribution than if the same accident occurred within the Decedent’s home State.  For example, in North Carolina, where there are no children the surviving spouse of a Decedent would have to share the proceeds with the parents of the Decedent but, if the incident occurred in South Carolina, the surviving spouse would receive all of the proceeds. 

 These rules apply regardless of whether a settlement is reached with the insurance company or a lawsuit is filed.  While the establishment of an estate may be required to bring a lawsuit on a wrongful death, the distribution Statutes will still control. 

 It is important that you have an attorney competent in both personal injury and estate administration assist in any accident that results in a death.   

[1]   The U.S. Supreme Court addressed this issue in Wilkins v. Ellett, 76 U.S. 740, 1869 WL 11617.  The Supreme Court stated, “[i]t has long been settled, and is a principle of universal jurisprudence in all civilized nations, that the personal estate of the deceased is to be regarded, for the purpose of succession and distribution, wherever situated, as having no other locality than that of his domicile; and if he dies interstate the succession is governed by the law of the place where he was domiciled at the time of his decease, and not by the conflicting laws of the various places where the property happened at the time to be situated, 2 Kent. Comm. 429; Story, Confl. Laws, § 379.”  Id. at 742.


[2] Hartness v Pharr 133 NC 566, 45 SE 901 (1903) Hartness, is a North Carolina Supreme Court case where it was determined that the laws of the State where the action accrues apply to the distribution of wrongful death proceeds.  In Hartness, the decedent was a South Carolina resident who died in North Carolina.  The Court ruled that North Carolina law applied and that the wrongful death proceeds would be distributed based upon North Carolina statutes.  


[3] Hughes v. Doe, 281 S.C. 488, 316 S.E.2d 383 (1984)  Hughes, is a South Carolina Supreme Court Case which ruled that the statute of the State where the cause of action arises controls the distribution of wrongful death proceeds.  In Hughes, the decedent was a South Carolina resident and the death occurred in Georgia. 


[4] N.C. Gen. Stat. § 28A-18-2