concurring in part, dissenting in part.
Although I concur in the majority’s holding relevant to the survival action, I respectfully dissent from the majority’s holding interpreting the Wrongful Death Act to barr the siblings of Lester Tyson from recovering because of the bad acts of Tyson’s estranged wife.
The majority correctly notes that N.C. Gen. Stat. § 29-15 provides that: “Those persons surviving the intestate, shall take that share of the net estate not distributable to the surviving spouse, or the entire net estate if there is no surviving spouse.” The majority broadly defines “distributable,” however, to include situations in which the surviving spouse is statutorily barred from recovery. For instance, although Brenda Tyson “willfully and without just cause abandoned” her husband, and, therefore, was barred by N.C. Gen Stat. § 31A-l(a)(3) from intestate succession, the majority reasons that the decedent-spouses’ net estate was still “distributable” to her. Consequently, the majority concludes, the intestates, who only include brothers and sisters of the decedent, Lester Tyson, are barred from recovery because the estate was “distributable” to Brenda Tyson. I dissent because this result is not only unfair and inconsistent, it perverts the relevant statute to judicially decide that a spouse’s willful abandonment of her husband bars the husband’s brothers and sisters from the benefits of his estate.
In support of this inequitable proposition, the majority states that “Lester Tyson’s siblings could only continue the wrongful death action if Brenda Tyson’s bad acts mandated that she be treated as having pre-deceased her husband.” The majority, however, cites no statutory or case law in direct support of this proposition. Rather, the majority relies on Cummings v. Locklear, 12 N.C. 572, 183 S.E.2d 832 (1971) and Williford v. Williford, 288 N.C. 506, 219 S.E.2d 220 (1975).
In Cummings, our Supreme Court held that a husband could not share in a wrongful death recovery against his insurer, where the husband was legally negligent and responsible for the death of his wife. Accordingly, this Court held that the husband’s intestate share, one-third of the recovery, could not be given to his children. Our holding in Cummings, however, is inapposite in the case sub judice for two reasons.
First, Brenda Tyson was not responsible for the death of Lester Tyson. In fact, the record makes it apparent that the reason Brenda *110Tyson made an affirmative “Statement of Renunciation and Acts Barring Property Rights” to the estate of Lester Tyson was because of a reasonable legal interpretation of the relevant statute, N.C. Gen. Stat. § 29-15, that once she renounced her interest the intestate heirs would take “the entire net estate.” The record provides no other motive for Brenda Tyson’s renunciation.
Second, in Cummings this Court held that the children of the father could not take his intestate share, where the father negligently caused the death of the mother. Here, however, the intestates seeking recovery are not related to Brenda Tyson, the alleged wrongdoer. Rather, the intestates are the brothers and sisters of the decedent Lester Tyson. Why should the decedents of Lester Tyson be punished for the alleged bad acts of Brenda Tyson?
Likewise, the holding in Williford is inapposite to the case sub judice. In fact, a close reading of Williford, is contrary to the holding of the majority. In Williford, our Supreme Court held that a father, who abandoned his child, could not share in the wrongful death recovery of that abandoned child.
First, the facts of Williford are significantly different because Brenda Tyson is not seeking to share in the wrongful death recovery. Rather, Brenda Tyson was merely renouncing her rights in order to expedite the apparent rights of the intestates. Second, and most importantly, in Williford our Supreme Court did not limit the wrongful death recovery by one half, simply because the father was barred from recovery. Instead, the entire recovery was awarded to the mother. Thus, in Williford, the father’s statutory bar to recovery did not prevent the other intestate, his former wife, from succeeding in his half of the recovery.
In my view, once Brenda Tyson renounced her interest in the estate of Lester Tyson, the assets of the estate were no longer “distributable” to her under N.C. Gen. Stat. § 29-15. Consequently, “[t]hose persons surviving the intestate, [should] take that share of thé net estate not distributable to the surviving spouse.” Since nothing was “distributable” to Brenda Tyson after the renunciation, the intestates should take everything. Accordingly, I respectfully dissent.