Georgia Wrongful Death Statute Explained


Georgia’s Wrongful Death Law

Under Georgia’s Wrongful Death Act, if a person is killed by the wrongful act of another person or company, then the family of the person who died has the right to bring a wrongful death claim.  Georgia’s Wrongful Death Act establishes that the family of the person who died can make a claim for “the full value of the life of the decedent.” O.C.G.A. § 51-4-2.

  • Generally, a wrongful death claim must be filed within two years of the death, although it can be longer or shorter in certain circumstances.
  • If the person who died is survived by a husband or wife, then that spouse generally has the right to bring the wrongful death claim under Georgia law. If there is no surviving spouse, then any surviving children may bring the claim. If the person died without any spouse or children (for instance, if the decedent was a child), then the parents or guardians can bring the wrongful death claim.
  • The “full value of the life” is measured from the point of view of the person who died. Brock v. Wedincamp, 253 Ga. App. 275, 281-82 (2002).
  • The “full value of the life” has two parts: the intangible, which includes the decedent’s relationships, family, and reasons for living; and the tangible, which includes the money that the decedent would have earned and the value of any household jobs that the decedent handled.
  • The family of the deceased usually also brings claims on behalf of the deceased’s Estate, such as claims for the pain and suffering experienced by the decedent.

What is the statute of limitations to bring a wrongful death claim?

The statute limitations to file a wrongful death claim in Georgia is usually two years from the date of the deceased’s death. O.C.G.A § 9-3-33. Depending on the circumstances, however, that time could be shorter or longer.

If a branch of the government is at fault for the death (for instance, if a government van ran over the decedent), the deadline could be shorter. Depending on whether the federal, state, county, or city government is at fault, there could be a deadline as soon as six months or a year after the incident occurs. The exact deadline depends on the circumstances and the branch of government at fault, but this deadline is usually called an ante litem deadline.

If someone is killed because of a violation of a Georgia law—whether a violent crime or a traffic violation—the statute of limitations may be paused (or “tolled,” to use the legal term) pending the outcome of a criminal prosecution against the person who broke the law. See Beneke v. Parker, 285 Ga. 733, 734 (2009). A “crime” need not involve criminal intent or criminal negligence to fall within the purview of the tolling statute, O.C.G.A. § 9-3-99 . A violation of the Uniform Rules of the Road is a misdemeanor, and a misdemeanor falls under O.C.G.A. § 9-3-99. Therefore, in any motor vehicle crash where the at-fault driver could have been charged with a crime or traffic violation, the statute of limitation for the wrongful death lawsuit may be tolled from the date of the violation until a final disposition of the traffic charge or for six years, whichever is shorter. Harrison v. McAfee, 338 Ga. App. 393, 402 (2016). The two year period set by the statute of limitation would start running after that.

How do you bring a case arising out of a wrongful death?

Surviving family members usually have two claims that can be filed with the court.  The first is a “wrongful death claim,” and the second is an “estate claim.” Read below to learn about each, and for additional information, see our Wrongful Death FAQ.

What is the difference between a wrongful death claim and an estate claim?

The first claim, called the wrongful death claim, is created by statute. This claim is for the “full value of the life of the decedent” from the deceased’s eyes.  O.C.G.A.§ 51-4-2(a).  In Georgia, this means that a jury is asked to consider what this person’s life meant from the perspective of the person who diedBrock v. Wendicamp, 253 Ga. App. 275, 281 (2002).

The “full value of the life” has two parts.  First, it includes the “intangible” value of life. This intangible component includes the parts of life that we value most, like spending time with family and friends, relaxing, having fun, exercising, raising children, love, playing sports, daily activities, volunteering, or life milestones like graduating from high school or having children.

Second, the “full value of the life” also includes “tangible” value. Also called the “economic” value of a life, this component refers to the economic value of the things the decedent did. The tangible value of a life includes the money that the decedent would likely have earned throughout his or her life as well as the economic value of things like mowing the yard, washing the dishes, taking out the trash, driving children around, or caring for older relatives.

The other claim, called the estate claim, permits the family of the decedent to recover for the pain and suffering of the decedent, any medical bills incurred before death, funeral expenses, and a few other items.  In Georgia, any claim for punitive damages must also be brought by the estate. If the decedent had a will, then the administrator named in the will must bring the estate claim. If the decedent did not have a will, then Georgia’s laws of intestacy will determine who can bring the claim. See O.C.G.A.§ 53-2-1 et seq.

Which surviving family member files a Georgia wrongful death case?

The wrongful death statute sets out strict rules who can bring the claim. If the deceased left a surviving spouse, then the surviving spouse holds the authority to bring the claim—he or she is the only person who can bring it.  If the deceased also left surviving children, then the surviving spouse must act as a representative of the children and share with the children any damages award that is received. (Note that while the surviving spouse must share the damages award, the spouse can never receive less than one-third of the recovery, no matter how many children there are.)  If the deceased was divorced, then any surviving children of the deceased would hold the claim jointly. O.C.G.A § 51-4-2(d).

If the deceased had children, but one of those children died before the decedent, the law used to be that the deceased child’s heirs (usually meaning, the deceased’s grandchildren) did not share in the wrongful death recovery.  The Georgia Supreme Court reached that conclusion in Tolbert et al. v. Maner, 271 Ga. 207, 209 (1999).  The law has changed now.  In 2022, the legislature added this sentence to the statute: “If there is no surviving spouse, the amount recovered . . . shall be equally divided, share and share alike, among the children per capita, and the descendants of children shall take per stirpes.”  See O.C.G.A § 51-4-2(d)(2).  That means that if the decedent dies without a spouse, then the decedent’s children and the heirs of any predeceased child have a right to share in the financial recovery from a wrongful death claim.

Unlike in some other states, in Georgia, a person does not have to be the Administrator, Executor, or Personal Representative of the deceased’s Estate to bring the wrongful death claim. That is because in Georgia, the two types of claims (wrongful death claims, and estate claims) that can be brought after a person’s death are separate. Surviving family members (spouse, children, parents) almost always bring the wrongful death claim, while the Administrator of the Estate brings the claims on behalf of the Estate. In practice, it usually doesn’t make a difference, because the same person is usually in charge of both—for instance, the surviving spouse is usually the wrongful death claimant and the Administrator of the estate. But in some wrongful death cases, this unusual twist in Georgia wrongful death law can make a difference.

The only time that an unrelated Administrator of the Estate could bring a wrongful death claim in Georgia is if the deceased left no surviving spouse, children, or parents. In that situation, the Administrator of the Estate would bring the wrongful death claim, and the damages recovered would be held for the benefit of the next kin. See O.C.G.A § 51-4-5.

What if the wrongful death beneficiaries don’t agree?

Sometimes after the wrongful death of a parent, the surviving family members may not agree on what to do. For example, the adult child of the decedent may want to hire one lawyer, and the parent of the decedent’s minor child may want to hire another. Or one wrongful death beneficiary may want to file a lawsuit, while another beneficiary may not. Or one parent of a decedent child may have moved away, may be missing, or may be incarcerated, such that he or she cannot realistically participate in the wrongful death case.

This is not an ideal situation. If at all possible, the family should act together. But sometimes life doesn’t work that way. If there is no better alternative, it is possible for different beneficiaries to hire different wrongful death lawyers or proceed with the case differently. If that does happen, the family will be much better off if the lawyers can at least work in harmony and trust one another. If the wrongful death lawyers are able to act in unison, instead of fighting over who gets what percentage of the recovery, then often the total amount recovered in the case will be higher. Everyone is better off in the long term.

This is another reason to hire a well-regarded wrongful death attorney that others can trust and respect.

What “damages” can a jury impose in a wrongful death case?

The value of human life is viewed and valued from the eyes of the deceased. In awarding damages for wrongful death, the jury is asked to consider the value of the person’s life to himself or herself. Learning about who the person was and what made the person’s life special to him or her is what leads to an amount. Photographs, videos, and stories help tell the story. The amount of the verdict is up to the “enlightened conscience of the jury.” Chrysler Group, LLC v. Walden, 339 Ga. App. 733, 750 (2016). For example, in a two week jury trial in which our firm represented the parents of a 4 year old boy who was killed in a defectively designed Jeep, a 12 member jury in Decatur County, Georgia awarded $120,000,000.00 ($120 million dollars) for the full value of the young boy’s life.

The Estate of the deceased also holds the claim for any medical bills, conscious pain and suffering prior to death, and funeral expenses. The Estate holds the claim for the suffering before death. Additionally, the Estate holds a claim for “fright, shock, and terror” for the fear the decedent when he or she knew that death was imminent. In the tragic case of the 4 year old boy, the jury returned a verdict of $30,000,000.00 ($30 million dollars) for the pain and suffering he endured.

Usually, the deceased’s will identifies the Executor. If there is no will, then the laws of intestacy will be used to determine who can the claim.

Butler Kahn’s closing argument in a wrongful death case that led to a verdict of $150,000,000.
An economist testifies as we ask him questions.

How long does a wrongful death lawsuit take in Georgia?

This is a legitimate question, and a common one. Unfortunately, there isn’t a clear answer. It depends on several different factors. We’ll talk about a few of those factors below.

First, it depends on the family and the Probate Court. Some families are complicated, and it can take awhile to get all the necessary relatives on the same page about what to do, why to do it, and who to do it with (which is perfectly fine). Typically, a wrongful death lawyer will identify the wrongful death claimants under Georgia law, and figure out who needs to serve as the Administrator of the estate. Then the wrongful death lawyer will need to get the decedent’s estate set up, which can take anywhere between several weeks and a few months depending on whether the surviving family members agree on what to do, whether the decedent had a will, and how quickly the Probate Court (which sets up decedents’ estates) is able to get the paperwork in order.

Second, it depends on the defendant being sued. Sometimes a large, wealthy, corporate defendant decides that it wants to earn a reputation as an aggressive litigator, so it don’t want to settle the case quickly. Some product manufacturers, particularly automakers, fit this description. With a defendant like that, it almost doesn’t matter how bad the defendant acted or how clear the case seems – the defendant is determined to hire high-dollar lawyers who charge by the hour to file motion after motion. With defendants like that, cases can last for several years. But not all defendants think that way. Some businesses or individuals can be genuinely remorseful for what happened, and may be ready to resolve the case as soon as possible.

Third, it can depend on the available insurance limits. Sometimes, there just isn’t enough insurance coverage to compensate a family for the death of a loved one. For instance, if a decedent was killed in a car accident by an at-fault driver who carried only Georgia’s minimum insurance limits of $25,000, then it quickly becomes clear that the available insurance isn’t going to be enough. Usually a driver who carried only the minimum insurance limits has no personal assets to speak of. In those situations, the insurance money may be all there is to collect. In a case like that, most plaintiffs decide to give the at-fault driver’s insurance company a chance to pay the insurance policy limits by some reasonable deadline. If the insurance company then does what it should, those cases end quickly, often within several months.

Fourth, it depends on what the family wants. Some families sense that their loved one was killed through systemic or deliberate misconduct, and they want to take the case all the way through trial. Other families want a faster resolution to the case so they can have closure and move on with their lives. Either approach is understandable. Our firm’s practice is to respect our clients’ wishes.

What should a family do after the loss of a loved one?

The first thing any family should do after losing a loved family member to wrongful death is to grieve properly. There will be a host of emotions that come from losing a loved family member due to the negligent, or worse, willful actions of some other person or company. And while it is very important that surviving family members properly mourn the loss of a loved parent or child, it is also important that the family gathers as much evidence as possible as soon as possible after the deceased’s wrongful death. The reason: if you’re not gathering the evidence, the defendant probably is.

Take for example a tractor-trailer crash in which a truck kills the driver of another car. As soon as that crash happens, the driver of the tractor-trailer is calling his company. And once that company gets a call advising them of the crash, they are calling an insurance defense law firm and national insurance company who will rush defense experts out to the scene to gather the evidence.  They’ll use that evidence to build a defense aimed at avoiding responsibility.

Evidence from the tractor-trailer could show what happened in the seconds before the crash. The tractor-trailer that caused the crash may have a “black box”—technically called an event data recorder, or “EDR”—that gathers information about the truck’s speed, braking, and time driven. But if the family’s lawyer doesn’t act quickly to preserve the EDR data, an irresponsible trucking company might delete the data.  Other evidence that should be gathered includes skid marks on the road and debris that came off vehicles in the wreck. Before long, the road will re-open and cars will travel across the site of the crash. Rain can wash away debris or erase tracks left on the shoulder of the road.

In almost any kind of wrongful death case, it is important to move quickly. For instance, the surveillance video that shows a crime has been committed might get recorded over every week or ten days, or a key witness might move or change his phone number. That is why it is so important to gather the evidence, and do it quickly.

Of course mourning the loss of a loved family member takes priority. That is the most important thing. But consulting with a knowledgeable attorney who shows empathy and skill in handling wrongful deaths probably comes second. The attorney you hire should know what to do, and how to do it. He or she should give you the freedom to focus on re-building your life while the law firm focuses on the case. Filing a lawsuit against the responsible party is almost always necessary. While a settlement may be reached, the goal should always be preparing the case for a trial. Not only is that the best way to be ready for trial, but it is also the best way to make the defendant want to settle.

Georgia Wrongful Death Lawyer

If you are reading this article because you have experienced a tragic loss in your life, we are sorry. We hope this article has been helpful.

If you’d like to talk with one of our experienced wrongful death attorneys, call us for a free private consultation. Our main office’s telephone number is 678 400 6166. It costs no money to talk with us and learn more about the law and what make us different—and if we can’t take your case, we’ll recommend another lawyer who can. We work on a contingency fee arrangement which means if you decide to hire our firm it will cost you no money up front. We don’t bill per hour; we don’t charge a retainer; and we don’t charge a flat fee. We only get paid at the end when you get paid. Our fee is a percentage of the damages we win at trial or through settlement.

Picture of Jeb Butler
Jeb Butler’s career as a Georgia trial lawyer has led to a $150 million verdict in a product liability case against Chrysler for a dangerous vehicle design that caused the death of a child, a $45 million settlement for a young man who permanently lost the ability to walk and talk, and numerous other verdicts and settlements, many of which are confidential at the defendant’s insistence. Jeb has worked on several cases that led to systemic changes and improvements in public safety. He has been repeatedly recognized as a Georgia SuperLawyer and ranks among Georgia’s legal elite. Jeb graduated in the top 10% of his class at UGA Law, argued on the National Moot Court team, and published in the Law Review. He is the founding partner of Butler Kahn law firm. Connect with me on LinkedIn
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