The untimely loss of a family member is a heart-wrenching experience under any circumstances. But if someone else’s negligence was responsible for your loss, the pain can be compounded by righteous anger at the responsible party. You may also be left wondering how your family will cope without your loved one’s emotional and financial support.
If someone in your family has died and you believe someone else was at fault, Georgia law may allow you to file a wrongful death lawsuit. However, not all surviving family members are eligible to file a wrongful death claim.
Who Can Sue for Wrongful Death in Georgia?
Under Georgia law, only the victim’s surviving spouse, children, and parents can sue for wrongful death. If the victim has no surviving family members, a personal representative may file a wrongful death lawsuit on behalf of the victim’s estate.
The Georgia wrongful death lawyers at Butler Kahn have many years of experience handling these delicate, emotional cases. After hearing more about your circumstances, we can explain your legal options to you. Here, we will explain who can file a wrongful death lawsuit and under what circumstances. If you still have questions about your unique wrongful death case, contact our office for a free case evaluation.
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How Is Wrongful Death Defined in Georgia?
Georgia’s Wrongful Death Act defines wrongful death as any death that results from a crime, negligence, or a defective product of some kind. In short, wrongful death is any death that results from someone else’s intentional or reckless conduct.
For example, a person who was shot to death has suffered a wrongful death, as has someone who died in a car accident that was someone else’s fault. If you’re not sure whether the loss of your loved one would be considered a wrongful death, talk to a wrongful death lawyer who can analyze your situation and explain your options.
Who Brings a Georgia Wrongful Death Claim?
Georgia law is quite explicit about who can and cannot file a wrongful death claim after the death of a family member and establishes an order of eligibility. The four categories of people who can file a wrongful death claim in Georgia include:
- The deceased’s spouse – The spouse of the deceased has the first chance to file a wrongful death claim. However, former spouses cannot file a wrongful death claim if the deceased was divorced when they died.
- The deceased’s children – If the deceased does not have a surviving spouse, then any surviving children are next in line to bring a wrongful death claim. However, the deceased’s surviving children cannot file a wrongful death claim if there is a surviving spouse, even if the surviving spouse does not wish to file a claim.
- The deceased’s parents – If the deceased had no surviving spouse or children, a surviving parent is next in line to file a wrongful death claim.
- The representative of the deceased’s estate – Lastly, if there are no surviving spouse, children, or parents, the representative of the decedent’s estate may bring a wrongful death claim. The estate will hold any money recovered through such a claim and divide it among the deceased’s eligible next-of-kin.
Who Gets the Money in a Wrongful Death Lawsuit in Georgia?
The Georgia Wrongful Death Act states that any compensation recovered through a wrongful death action will be divided between the deceased’s surviving spouse and any surviving children. If the deceased has no surviving spouse but does have surviving children, then the surviving children will divide the compensation.
Should the deceased have no surviving spouse or children, whatever compensation is recovered through a wrongful death recovery claim will be split among the deceased’s beneficiaries per the terms of their will or estate plan. If the deceased died without a will, state inheritance laws determine which of the deceased’s next-of-kin may receive any compensation from a wrongful death claim.
Can Siblings Sue for Wrongful Death in Georgia?
Georgia law is clear about who can file a wrongful death claim after the death of a family member. Siblings are not on the list of eligible parties.
If the deceased’s siblings, grandparents, or other relatives wish to pursue a wrongful death claim, they might have two options. The first is to see if one of the eligible family members (a surviving spouse, surviving children, etc.) is willing to file a claim. The second option is to speak with the personal representative of the deceased’s estate and see if they will file a wrongful death claim. If a sibling of the deceased was named as the representative of their estate, that sibling could be allowed to file a wrongful death claim.
How Hard Is It to Prove a Georgia Wrongful Death?
Proving someone died a wrongful death requires proving that their death was due to another party’s negligent or intentional act. Or, to put it another way, the person bringing the wrongful death suit must demonstrate that the deceased would not have died but for the wrongful behavior of another party.
Negligence is a legal concept based on the idea that people, businesses, and other parties have a legal responsibility to avoid injuring others or, in certain circumstances, allowing them to become injured. It may not always be possible to avoid hurting someone else or allowing them to be hurt, but, if possible, reasonable steps should be taken to prevent injuries. If someone does not live up to their duty to avoid injuring another party, they could be found negligent and be held financially liable for the injuries they caused.
Please note: The state of Georgia has a Statute of Limitations on the time in which you can file wrongful death claims. That statute of limitations sets that time period at two years. Do not delay if you are considering filing a Georgia wrongful death case. There is much research that needs to be done by our firm to fully prepare your case so as to maximize the likelihood of a successful outcome.
Wrong Death Claims When a Spouse or Child Survives the Victim
Not everyone can initiate a wrongful death claim. The deceased accident victim might have been a close friend or fiancé, but an individual cannot bring a wrongful death claim solely because he or she has an emotional attachment to the victim.
Rather, section 51-4-2 of the Georgia Code authorizes specific family members to initiate a claim. If those family members are living, they are the only individuals who can bring a wrongful death claim.
If the victim was married when he or she died and the victim’s spouse is still alive, Georgia law authorizes the spouse to file a wrongful death claim. If the victim’s spouse brings the claim but dies before it is resolved, the victim’s surviving children can continue pursuing the claim.
If the victim was not married at the time of death, any child of the victim is authorized to bring the claim. If that child dies while the claim is pending, the right to pursue the claim passes to the other living children of the victim.
While these rules apply in most cases, there are exceptions. For example, a spouse who caused a wrongful death loses the right to bring a wrongful death claim. In that case, the claim can be pursued by the victim’s surviving children (if any) or by others who are next in line to bring the claim. Carringer v. Rodgers, 276 Ga. 359, 363-64 (2003).
Even if the victim is survived by a spouse, the victim’s children might be authorized to commence the claim when the spouse is unable or unwilling to do so, or is unrelated by blood to the children. Mann v. Taser International, Inc., 588 F.3d 1291, 1311 (11th Cir. 2009). A surviving spouse who has abandoned his or her children and cannot be found may also lose the right to bring a wrongful death claim. Brown v. Liberty Oil & Refining Corp., 261 Ga. 214, 215-16 (1991).
Wrongful Death Claims When No Spouse or Child Survives the Victim
What happens if the victim was unmarried and had no living children at the time of death? Under section 19-7-1(c) of the Georgia Code, the victim’s parents are next in line to initiate the claim. Whether one or both parents can bring the claim depends on these circumstances:
- If both parents are alive, still married, and living together, they may bring the claim jointly.
- If one parent is dead, the surviving parent may bring the claim.
- If both parents are alive but no longer married, or if they are married but separated, they both have the right to bring the claim. If one parent refuses, the other parent may bring the claim on behalf of both parents.
As stated in section 19-7-1(c)(3) of the Georgia law, a right of recovery exists for every wrongful death. If the deceased victim has no surviving spouse, child, or parent, section 51-4-5 of the Georgia Code provides that the victim’s estate can bring a claim for the victim’s wrongful death.
A wrongful death claim is commenced by filing a lawsuit unless the claim is resolved by settlement before suit is filed. Regardless of the person who is authorized to bring the claim, Georgia law also determines how the proceeds of a settlement or judgment will be distributed. You can read Where Does the Money Go in a Wrongful Death Case? to learn who participates in the payment of a wrongful death claim.
Estate Claims
When the victim’s estate brings a claim to recover the expenses of the victim’s death and/or compensation for the victim’s pain and suffering, the claim is brought by the estate’s administrator. The probate court will appoint an administrator. If the accident victim had a Will, the administrator will usually be the personal representative named in the Will.
If the administrator is also a person who is authorized to bring a wrongful death claim (as is often true when the accident victim is survived by a spouse), that person can bring both claims. The administrator might also bring both an estate claim and a wrongful death claim when none of the other people described above (a spouse, child, or parent) are alive at the time of the accident victim’s death.
If your loved one died in Georgia and you are wondering who should begin an Atlanta wrongful death claim, the experienced attorneys at Butler Kahn can answer your questions.
Our Wrongful Death Lawyers in Georgia Are Ready to Talk
At Butler Kahn, we understand the pain of losing a loved one due to another person’s negligence. While there’s no way to bring your loved one back, depending on the circumstances, you may be able to hold the responsible party accountable for their negligent actions through a wrongful death claim.
A wrongful death claim can also provide you with the money you need to cover the deceased’s medical bills, burial and funeral costs, and other losses. If the deceased was the primary provider for your family, a wrongful death claim is a way to recover the income you’ve lost due to their death.
To learn more about wrongful death cases in Georgia, contact our office for a free consultation.
