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Workplace Injury Frequently Asked Questions

WARNING: All of the information provided here is of a general nature only. The specific facts of your case may require a completely different answer. Do not base any decision with respect to your case solely on any of the answers found herein. Prior to making any decision with respect to your case, you should speak with a competent attorney who is familiar with the laws that relate to your case.

Who is entitled to get damages related to the death of a loved one in a wrongful death case?

In North Carolina, in the first case of a surviving spouse, the answer to that question first depends on the size of money we are talking about.


North Carolina Deceased Spouse.  What does the surviving spouse get, and what do the children get?


    • If the estate is more than $30,000, and there is one child, the surviving spouse gets the first $30,000 of that recovery, and the surviving spouse and child split the rest.


    • If the estate is more than $30,000 and there are two or more children, then the surviving spouse gets the first $30,000 of the recovery, +1/3 of the remainder of the recovery. The children then take a pro-rata share of the remaining portion of the recovery.


    • If the estate and recovery are more than $50,000, and there are no children of the deceased or lineal descendents of a deceased child or children, and the deceased is survived by one or more parents, then the surviving spouse takes the first $50,000 +1/2 of the remainder of the recovery and that surviving spouse splits that one half with any of the deceased’s parents, who take a pro rata share of the remainder.


    • If the deceased is not survived by a child, children, lineal descendents of any deceased child or children, or by parent, then the surviving spouse takes all of the recovery, regardless of the amount.


North Carolina– Child and No Spouse of the deceased.  


    • If the deceased is a parent who was not married, and if there is one child, that child takes the entirety of any recovery.


    • If there is only one lineal descendent of only one deceased child, that child takes the entirety of the recovery. (Grandchild whose parent previously died, which parent was a child of the deceased)


    • If there are two or more lineal descendents of one deceased child, or two or more children of the deceased, or any other kind of combination of those, then the shares of those children and/or descendents are determined as provided in the intestate succession statute at N.C.G.S. 29-16.


North Carolina-no spouse or children of deceased, no descendents of deceased children of deceased:


    • The surviving parents of the deceased take all.


North Carolina no spouse or children of deceased, no descendents of deceased children of deceased and no parents of deceased:


    • The surviving brothers and sisters of the deceased and the lineal descendents of any deceased brothers or sisters of the deceased (nephews or nieces) share pursuant to the intestate succession statuteN.C.G.S. 29-16


North Carolina– none of any of the previously mentioned survivors of the deceased. No spouse, children, descendents of deceased children, parents, siblings, or lineal descendents of any deceased sibling:


    • Paternal grandparents take one half in equal shares. If one is dead, the survivor takes the entire half.


    • If neither is alive, then uncles, aunts, and their surviving descendents take one half as provided in the intestate succession statute at N.C.G.S. 29-16


    • Maternal grandparents take the other half just as described for Paternal grandparents.


    • If there are no grandparents on one of the sides-either the maternal or the paternal side, then the other side shares the entire recovery.


North Carolina: Deceased Illegitimate child– Very Harsh Law. The lesson here to any and all fathers of children out of wedlock, is this: If you care about your child and voluntarily support that child, unless you have taken the appropriate legal action, the law does not recognize you as the father when it comes to wrongful death of the child.  You must  make your paternity legal, by executing the appropriate documents and filing them in the appropriate Court during the child’s lifetime.


    • Unless the father has acknowledged during his own life time and in the child’s lifetime, his paternity, namely, that he is the father of the deceased child, in writing, acknowledged before the Clerk of Court his paternity, and then filed with the Clerk of Court that sworn acknowledgment, then the father is entitled to nothing. It does not matter if this man was the only father that the deceased child ever knew, or if the father raised the child on his own, or lived with the child is entire life. If these written requirements and filing in the Court were not accomplished while the child was alive, the father has absolutely no right to any share in the recovery of any wrongful death action brought on the behalf of the deceased child.


North Carolina: Willful abandonment.


    • Any parent who has willfully abandoned the care and maintenance of his or her child loses all rights to any recovery, unless that parent had resumed care and maintenance of said child at least one year prior to the death of the child, continuing the same until the child’s death, or where the parent has been deprived of custody of the child by way of Court Order, and the parent has substantially complied with all orders of the court requiring contribution to the support of the child.


Virginia—Size of Estate makes no difference.  In Virginia, certain classes of relatives must share in the recovery, unless a particular beneficiary renounces their interests in the recovery. Unlike North Carolina, the size of the recovery is not a factor Virginia. The big issue determining each person’s share of the recovery is going to be the relationship of each potential beneficiary to the deceased. The beneficiary levels are as follows:


    1. The surviving spouse, children of the deceased, and children of any deceased child of the deceased all share.


As a practical matter, and this goes for each of these levels, it must be decided the proportion of who gets what. In other words, you will note that the statute does not say that these parties are to share EQUALLY.  If the parties cannot agree on the distribution of the money, most Courts, for instance, are going to give precedence to minors and always do what is in the childrens’ best interests.  For instance, if there was a strained relationship or even separation between the spouse and the deceased (but not divorce), but a surviving child was close with their deceased parent, then the Court is going to give precedence, and a much larger share to the minor child.


If we are not dealing with someone with a spouse or children at the time of death,  then–


    1. The parents, brothers, and sisters of the deceased, and any other relative who is primarily dependent on the decedent for support or services and is also a member of the same household as the decedent all share.Again, as a practical matter, note the law does not say all these relatives share equally. For instance, if the deceased is a child, and there is a father who has visitation, a mother who has full custody, and two minor siblings of the deceased who stay with the mother, the Court is going to give preference to the two minor siblings. It is likely that the father who only has visitation is going to get a lesser share of the recovery/settlement than the mother and the mother is going to get a lesser share than the siblings of the deceased.


    1. If the decedent has left both a surviving spouse and parent or parents, but no child or grandchild, the award should be distributed to the surviving spouse and such parent or parents, or


    1. In addition to the beneficiaries and one and three, above, any other relative who is primarily dependent on the decedent for support or services and is also a member of the same household as the decedent is also a beneficiary.


    1. If there are no survivors to fit any of the descriptions above, then you must look to a Virginia statute which lists eligible descendents may qualify as a beneficiary.


Virginia Beach Office

5500-B Greenwich Rd.
Virginia Beach, VA 23462

Elizabeth City Office
(by appointment only)
507 E Main St #K
Elizabeth City, NC 27907

If you are looking at this site, you or a loved one has probably been hurt. If that's true, you've come to the right place. Helping people who have been hurt is what we do. In fact, it is all we do. Joe Miller Law is a law firm concentrating exclusively on representing people who are injured by the carelessness of others or those hurt on the job. We provide the highest quality legal services to people who have been seriously injured. We practice Personal Injury law and Workmens' Compensation law in both Virginia and North Carolina.