Who gets the money in a Georgia wrongful death case?

Georgia law establishes clear rules for where the money goes in a wrongful death case. The Official Code of Georgia says that any money received from a wrongful death case “shall be equally divided, share and share alike, among the surviving spouse and the children.” O.C.G.A. § 51-4-2(d)(1). In other words, the surviving husband or wife and the decedent’s surviving children share equally in the recovery, with each receiving an identical share. If a child of the decedent is a minor, that child’s guardian will be responsible for handling his or her share. However, in no event—even if there were four children—would the surviving spouse receive less than one-third of the recovery. O.C.G.A. § 51-4-2(d).

To use some examples:

1. If the decedent died with a surviving husband or wife but no children, that surviving spouse would receive 100% of the money from the wrongful death case.
2. If the decedent died with no surviving husband or wife, but one surviving child, that child would receive 100% of the money from the wrongful death case.
3. If the decedent died with no surviving husband or wife, but two surviving children, one of which was under 18 years old (and therefore a minor), each surviving child would receive 50% of the money from the wrongful death case.  However, the guardian of the minor child would handle the minor child’s 50% of the money.
4. If the decedent died with a surviving husband or wife and two surviving children, each person—the surviving spouse and each of the surviving children—would be entitled to one-third of the money from the wrongful death case.
5. If the decedent died with a surviving husband or wife and four surviving children, the surviving spouse would be entitled to one-third of the money from the wrongful death case, and each child would be entitled to one-sixth of the money (which is one-fourth of the remaining two-thirds).

There are some exceptions to Georgia’s rules about how money from the wrongful death claim gets divided. If a decedent dies with no surviving husband, wife, or children, but two surviving parents, the parents usually share equally in any money recovered. However, if the parents are “divorced, separated, or living apart,” than a motion can be filed asking the judge to determine which parent will receive what share. O.C.G.A. § 17-9-1(c)(6). However, it is almost always smart to avoid filing such a motion, and instead divide the money 50/50 or handle the issue by agreement. The reason is that the defense can try to exploit the differences between the parents and use any accusations that are made against them both later in the case. Therefore, it is almost always in the interest of both parents to avoid this fight over who gets what.

Keep in mind that money from the estate claims can get divided differently than money from the wrongful death claims. That is because who receives money from the estate usually depends on the will, if the decedent had one, or on Georgia’s laws of intestacy (which are applied by probate courts) if the decedent died without a will. The difference between how wrongful death money is distributed, and how estate money is distributed, can create thorny issues about how to allocate settlement money between the two types of claims. The lawyers at Butler Kahn are familiar with these issues and have written professional articles about them.