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.
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.
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
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.
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.
To recover compensation in a Georgia wrongful death case, the claimant must establish specific legal elements. These elements form the foundation of liability and determine whether the surviving family members are entitled to damages under Georgia law. Each element must be supported by credible evidence.
The claim must begin by showing that the defendant owed a legal duty of care to the deceased. A duty of care exists whenever a person or entity is legally required to act in a reasonably safe manner to avoid causing harm to others. Examples include:
The existence of a duty is often determined by the relationship between the parties and the circumstances surrounding the incident.
Once a duty of care is established, the claimant must show that the defendant breached that duty. A breach occurs when the defendant’s actions—or failure to act—fall below what a reasonably careful person or entity would have done under similar circumstances. Common breaches include:
Evidence such as accident reports, witness testimony, surveillance footage, and expert opinions is often used to prove a breach.
Causation links the defendant’s breach of duty directly to the death. Georgia law requires proof of both:
Causation is frequently contested and may require medical experts, accident reconstruction specialists, or forensic evidence.
Finally, the claimant must prove damages. In a Georgia wrongful death claim, damages are measured by the full value of the life of the decedent, which includes:
These damages are distinct from losses suffered by the estate, which are pursued separately.
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.
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.
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 died. Brock 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.
Georgia law recognizes two separate legal claims that may arise after a fatal injury: a wrongful death claim and an estate (also known as a survival) claim. While related, these claims serve different legal purposes and compensate different types of losses.
A wrongful death claim seeks compensation for the full value of the life of the deceased. It is brought on behalf of surviving family members and focuses on what the deceased lost as a result of the death.
An estate claim addresses losses suffered by the deceased before death. These damages belong to the estate and are distributed according to Georgia probate law.
Key Differences at a Glance
| Issue | Wrongful Death Claim | Estate Claim |
| Purpose | Value of the deceased’s life | Losses suffered before death |
| Filed By | Family members or estate rep | Estate representative |
| Damages | Economic + non-economic | Medical bills, funeral costs |
| Distribution | Directly to beneficiaries | Through the estate |
| Deadline | Generally 2 years | Typically tied to same limit |
Most Georgia wrongful death cases involve both claims, and failing to pursue one can significantly reduce total recovery.
Wrongful death claims in Georgia involve strict statutory requirements, multiple potential claimants, and complex procedural rules. Families are often required to make legally significant decisions while grieving, which increases the risk of costly mistakes. Avoiding the following errors is critical to preserving the full value of a wrongful death claim.
Georgia’s wrongful death statute establishes a specific order of priority regarding who may bring a claim. The surviving spouse typically has primary authority, followed by children, parents, and finally the estate representative. Mistakes frequently occur when families:
Improper claimant designation can delay proceedings, trigger disputes among family members, or result in dismissal of the claim by the court.
Although wrongful death actions in Georgia generally must be filed within two years of the date of death, this deadline is subject to important exceptions. Criminal prosecutions, estate administration delays, and claims involving government entities can alter or suspend the limitations period. Families who do not act promptly risk losing critical legal rights, regardless of the merits of the case.
Many families mistakenly believe that a wrongful death claim alone addresses all losses. In reality, Georgia law separates wrongful death damages from estate-related damages. Without opening an estate and appointing a personal representative, families may be unable to recover compensation for medical expenses, funeral costs, and the pain and suffering endured by the deceased prior to death.
Insurance companies often seek early access to information following a fatal incident. Recorded statements, medical authorizations, and informal conversations can be used to challenge liability or reduce damages. Once provided, these statements cannot be retracted and may significantly weaken the claim.
Georgia’s “full value of the life of the decedent” standard is inherently complex and frequently undervalued by insurers. Calculating this value requires a comprehensive analysis of the deceased’s income, career trajectory, personal relationships, and life experiences. Families who accept early settlement offers often do so without understanding the long-term financial and legal consequences.
Wrongful death claims arise from fatal incidents caused by negligence, recklessness, or misconduct. Understanding the most common causes of wrongful death in Georgia helps identify potential defendants and the legal theories applicable to the case.
Fatal automobile accidents remain one of the leading causes of wrongful death in Georgia. These cases commonly involve distracted driving, impaired driving, excessive speed, failure to yield, or reckless conduct. Liability may extend beyond the driver to employers, vehicle owners, or manufacturers, depending on the circumstances.
Truck accidents frequently result in catastrophic or fatal injuries due to the size and weight of commercial vehicles. These cases often involve multiple defendants and may include violations of federal safety regulations, driver fatigue, improper maintenance, unsecured cargo, or negligent hiring practices by trucking companies.
Wrongful death may occur when healthcare providers fail to meet accepted medical standards. Examples include delayed diagnoses, surgical errors, anesthesia mistakes, medication errors, or failure to respond to medical emergencies. Georgia medical malpractice cases are governed by strict procedural rules and require expert testimony to establish liability.
Property owners and occupiers have a legal duty to maintain reasonably safe premises. Wrongful death claims may arise from unsafe structural conditions, unaddressed hazards, or inadequate security that leads to violent crimes. These cases often involve apartment complexes, hotels, shopping centers, and commercial properties.
Fatal workplace incidents frequently occur in construction, manufacturing, and industrial settings. While workers’ compensation benefits may apply, wrongful death claims may also be pursued against third parties such as equipment manufacturers, subcontractors, or property owners whose negligence contributed to the fatal incident.
Wrongful death claims may arise from shootings, assaults, or other violent acts when negligence by a third party—such as a property owner or business—played a role. These cases often focus on foreseeability, prior incidents, and the failure to implement reasonable security measures.
Our wrongful death cases and verdicts have been covered by major local and national media outlets following fatal accidents and high-value settlements
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.
The period following a wrongful death is emotionally overwhelming, yet the actions taken during this time can significantly affect a family’s legal rights. Georgia law imposes strict requirements and deadlines, making it important to take deliberate steps to preserve evidence, protect the claim, and ensure compliance with statutory rules.
Preserving evidence is critical in any wrongful death case. Physical evidence, documentation, and witness information can be lost or destroyed quickly if not secured. Families should make reasonable efforts to:
In cases involving vehicles, commercial equipment, or unsafe premises, early evidence preservation can be essential to proving liability.
Accurate records form the foundation of a wrongful death claim. Families should collect and organize all relevant documents, including:
These records help establish damages and support both wrongful death and estate (survival) claims under Georgia law.
Wrongful death claims involve complex legal issues, including determining the proper claimant, identifying all liable parties, and calculating the full value of the deceased’s life. Consulting with an experienced Georgia wrongful death attorney early in the process allows families to:
Early legal guidance can also help protect families from unfair settlement tactics.
Timing is critical in Georgia wrongful death cases. While the general statute of limitations is two years from the date of death, exceptions may apply due to criminal investigations, probate proceedings, or claims involving government entities. Delays in taking action can result in lost evidence or missed deadlines that permanently bar recovery. Acting promptly helps preserve both legal rights and the integrity of the case.
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 678 658 2196. 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.