If a loved one in your family died as the result of another person’s negligence, two different legal claims may be available. A wrongful death claim usually seeks compensation for certain surviving family members. An estate claim, however, seeks compensation for any pain and suffering the victim experienced prior to death, as well as medical and funeral expenses related to the death.
Every state has its own laws governing compensation after an accident victim dies. Furthermore, different states have their own rules about which individuals can participate in making a claim. This article explains how Georgia law governs participation in a wrongful death or estate claim.
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.
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 a wrongful death claim, the experienced attorneys at Butler Law Firm can answer your questions.