26 N.C. App. 61 | N.C. Ct. App. | 1975
This appeal raises the question as to whether a .parent who abandons a child under G.S. 31A-2 is precluded from participating in proceeds from the settlement of a claim for the wrongful death of the child.
Effective 1 October 1961, the General Statutes of North Carolina were amended by adding Chapter 31A, entitled “Acts Barring Property Rights”. G.S. 31A-2 as thereby enacted reads:
“Acts barring rights of parents. — Any parent who has wilfully abandoned the care and maintenance of his or her child shall lose all right to intestate succession in any part of the child’s estate and all right to administer the estate of the child, except—
(1) Where the abandoning parent resumed its care and maintenance at least one year prior to the death of the child and continued the same. until its death; or
(2) Where a parent has been deprived of the custody of his or her child under an order of a court of competent jurisdiction and the parent has substantially complied with all orders of the court requiring contribution to the support of the child.”
Plaintiff contends that G.S. 31A-2 has no application to recovery for wrongful death and, therefore, does not bar plaintiff’s claim. In support thereof, plaintiff cites Avery v. Brantley, 191 N.C. 396, 131 S.E. 721 (1926). In Avery v. Brantley, plaintiff brought suit to obtain one-half of the money recovered by defendant in an action for the wrongful death of plaintiff’s child.
Avery v. Brantley predates G.S. 31A-2, and in our opinion G.S. 31A-2 acts to preclude a parent who comes within its provisions from sharing in the wrongful death proceeds.
We are aware that the recovery in an action for wrongful death created by and based on G.S. 28-173 is not a general asset of the decedent’s estate. Bowen v. Rental Co., 283 N.C. 395, 196 S.E. 2d 789 (1973). However, the distribution of whatever recovery is obtained is governed by the provisions of G.S. 28-173. Brown v. Moore, 286 N.C. 664, 213 S.E. 2d 342 (1975). “Except as to burial expenses of the deceased, and reasonable hospital and medical expenses not exceeding $500.00, G.S. 28-173 provides that the only persons entitled to receive the damages recovered in a wrongful death action are those entitled to the decedent’s personal estate under the Intestate Succession Act.” Bowen v. Rental Co., supra. Under G.S. 31A-2, plaintiff lost all right to intestate succession in any part of his child’s estate. Consequently, he cannot share in any proceeds from a claim for the wrongful death of his child. See also, Smith v. Exterminators, 279 N.C. 583, 184 S.E. 2d 296 (1971).
No error.
