Filing a Claim Against a Deceased At-Fault Driver in Georgia or South Carolina

A car accident is traumatic enough on its own. When the driver who caused the crash also dies — either in the accident itself or shortly afterward — the situation becomes even more confusing. Many accident victims wonder: can I still pursue compensation if the person who hit me is dead? The answer, in both Georgia and South Carolina, is yes. Your right to compensation does not disappear when the at-fault driver dies. For a foundational overview of how negligence claims work, Cornell Law Institute provides helpful background.

The process is different from a typical car accident claim — you may need to file against the driver’s insurance policy, their estate, or both — but the legal right to recover damages for your injuries remains fully intact. Here is how it works in Georgia and South Carolina, and what steps you should take to protect your claim.

Can You Still File a Claim if the At-Fault Driver Died?

Yes. In both Georgia and South Carolina, a negligence claim survives the death of the at-fault party. This means that if another driver’s negligence caused your injuries, their death does not eliminate their legal liability or your right to seek compensation.

The legal basis for this is found in each state’s survival statutes:

• Georgia: O.C.G.A. § 9-2-41 provides that causes of action for injuries to a person survive the death of either party. Your claim can be brought against the deceased driver’s estate.
• South Carolina: S.C. Code § 15-5-90 similarly allows personal injury claims to survive the death of the tortfeasor (the person who caused the harm).

In practical terms, this means your claim proceeds in one of three ways: through the deceased driver’s liability insurance, through a lawsuit against their estate, or through your own uninsured/underinsured motorist coverage.

Filing an Insurance Claim Against a Deceased Driver

In most cases, the at-fault driver’s auto liability insurance policy remains in effect even after their death. The policy covers claims arising from accidents that occurred while the driver was alive and the policy was active. This means:

• You can file a claim directly with the deceased driver’s insurance company, just as you would if the driver were still alive
• The insurance company is still obligated to investigate the claim, negotiate in good faith, and pay valid claims up to the policy limits
• The insurer will typically assign an adjuster and defense attorney to handle the claim — the process looks largely the same as any other insurance claim

The key advantage of this path is that you are dealing with an insurance company, not the deceased driver’s grieving family. In many cases, the claim can be resolved entirely through the insurance process without any involvement of the estate or family members.

However, if the insurance coverage is insufficient to cover your damages — or if settlement negotiations break down — you may need to take additional steps.

Suing the Deceased Driver’s Estate

If the insurance company refuses to offer fair compensation, or if your damages exceed the deceased driver’s policy limits, you may need to file a lawsuit against the driver’s estate. This is the legal mechanism for pursuing claims when the at-fault party is no longer alive.

When you sue an estate, you are not suing the deceased person’s family members personally. You are suing the legal entity that represents the deceased person’s assets and liabilities. The estate is managed by a personal representative (also called an executor or administrator) who is appointed by the probate court.

Key points about suing an estate:

• The lawsuit names the estate as the defendant — for example, “Estate of John Smith, Deceased”
• The personal representative defends the case on behalf of the estate
• The deceased driver’s liability insurance typically still provides the defense and pays any judgment up to policy limits
• If the judgment exceeds policy limits, the estate’s assets (bank accounts, property, investments) may be used to satisfy the remainder
• Family members’ personal assets are generally not at risk unless they co-signed the driver’s insurance policy or were otherwise independently liable

How the Probate Process Works in Georgia and South Carolina

If you need to file a claim against the deceased driver’s estate, understanding the probate process is important because it affects the timing and procedure of your claim.

Georgia Probate

In Georgia, the probate court appoints a personal representative to manage the deceased person’s estate. If the deceased had a will, the named executor petitions the court. If there was no will, the court appoints an administrator — typically a close family member.

Under Georgia law, creditors (including personal injury claimants) must file their claims with the estate within a specific timeframe. Georgia requires creditors to file within the later of: (1) three months after the personal representative publishes notice to creditors, or (2) the general statute of limitations for the underlying claim.

South Carolina Probate

South Carolina’s probate process is similar. The probate court appoints a personal representative, and creditors must file claims against the estate. South Carolina requires that claims be filed within one year from the date of the decedent’s death or within the applicable statute of limitations, whichever is earlier.

In both states, if the estate has not yet been opened (no one has petitioned the court to begin the probate process), your attorney may need to petition the court to appoint a personal representative so that you have a party to sue. This is a procedural step, but it can add time to the process.

Using Your Own Uninsured or Underinsured Motorist Coverage

If the deceased driver had no insurance — or if their coverage is insufficient to cover your damages — your own uninsured motorist (UM) or underinsured motorist (UIM) coverage may fill the gap.

UM/UIM coverage is particularly important in deceased-driver cases because:

• The deceased driver may have let their insurance lapse before the accident
• The deceased driver’s policy limits may be too low to cover serious injuries like traumatic brain injuries or spinal cord injuries
• The estate may have few or no assets beyond the insurance policy

Review your own auto insurance policy to determine whether you carry UM/UIM coverage and what your limits are. An experienced attorney can help you identify all available sources of recovery.

When You Lost a Loved One Too: Wrongful Death Claims

In some tragic cases, a negligent driver causes a fatal accident that kills both themselves and an occupant of the other vehicle. If you lost a family member in a crash caused by a driver who also died, you may have a wrongful death claim against the deceased at-fault driver’s estate.

Wrongful death claims in Georgia and South Carolina differ in important ways:

Filing Deadlines When the At-Fault Driver Is Deceased

The standard statutes of limitations still apply, but the at-fault driver’s death can create additional timing considerations:

• Georgia personal injury: 2 years from the date of the accident (O.C.G.A. § 9-3-33)
• South Carolina personal injury: 3 years from the date of the accident (S.C. Code § 15-3-530)
• Probate creditor deadlines may impose additional requirements — particularly in South Carolina, where claims against the estate must be filed within one year of death

The interaction between the personal injury statute of limitations and the probate creditor deadline can create a compressed timeline. If the at-fault driver died in the accident, you may need to act quickly to ensure your claim is filed properly in both the civil court and the probate proceeding. Do not assume you have the full two or three years — consult an attorney as soon as possible.

Comparative Fault and Deceased Drivers

The at-fault driver’s death does not change how comparative fault is assessed. Both Georgia and South Carolina still apply their modified comparative fault rules:

• Georgia: You can recover if you are less than 50% at fault (O.C.G.A. § 51-12-33)
• South Carolina: You can recover if you are less than 51% at fault

However, the deceased driver’s death can complicate the fault analysis because the driver cannot testify about what happened. The insurance company may try to shift blame onto you, knowing that the other driver is not available to contradict their narrative. This makes evidence preservation critical — police reports, witness statements, dashcam footage, and accident reconstruction become even more important when the other driver cannot tell their side of the story.

Evidence Challenges When the Other Driver Is Gone

One of the unique challenges in cases involving a deceased at-fault driver is the loss of testimony from the other party. The insurance company’s defense team cannot depose the driver, but neither can your attorney. This creates both advantages and disadvantages:

Potential Advantages

• The deceased driver cannot offer a self-serving version of events that contradicts the evidence
• Objective evidence (police reports, forensic data, witness testimony) carries more weight without a competing narrative
• Toxicology reports from the autopsy may reveal intoxication or drug use that strengthens your case

Potential Challenges

• The insurance company may claim the deceased driver was not at fault, and there is no one to contradict their theory
• Evidence may be harder to obtain if the deceased driver’s vehicle was totaled and not preserved
• The deceased driver’s family may be reluctant to cooperate with discovery requests

An experienced car accident attorney knows how to build a strong case using available evidence — accident reconstruction experts, electronic data recorders, cell phone records, and witness testimony — even when the other driver is not available to testify.

Addressing Emotional Concerns About Pursuing a Claim

Many accident victims feel conflicted about pursuing a claim when the at-fault driver has died. You may worry about causing additional pain to the driver’s family or feel that it is somehow wrong to seek compensation from a deceased person’s estate.

These feelings are understandable, but consider the following:

• Your claim is primarily against the insurance company, not the family. In most cases, the family is not financially involved at all.
• Insurance exists for this exact purpose. The at-fault driver paid premiums so that their insurer would cover damages caused by their negligence — regardless of whether the driver survives the accident.
• Your injuries are real and your losses are mounting. Medical bills, lost wages, and pain and suffering do not go away because the other driver died. You and your family deserve compensation.
• Not pursuing the claim hurts you, not them. If you do not file, the insurance company keeps the premiums the at-fault driver paid — and you are left bearing the full financial burden of someone else’s negligence.

Talk to an Attorney About Your Case

Filing a claim against a deceased at-fault driver involves unique procedural and evidentiary challenges that require experienced legal guidance. At Roden Law, our personal injury attorneys have handled these complex cases across Georgia and South Carolina from offices in Savannah, Darien, Charleston, Columbia, and Myrtle Beach.

We work on a contingency fee basis — you pay nothing unless we recover compensation for you.

Injured in an accident where the at-fault driver died? Call Roden Law at 1-844-RESULTS or contact us online for a free consultation. We will evaluate your claim, identify all available sources of recovery, and guide you through the process.

About the Author

Eric Roden

Founding Partner, CEO