Finch McCranie LLP has handled dozens of wrongful death lawsuits in Atlanta and throughout the State of Georgia for over 50 years. When a person’s death is caused by the negligence of another person or company, the surviving family members have a legal right to file a wrongful death lawsuit. In Georgia wrongful death cases, knowing who is entitled to sue on behalf of the deceased person (and their estate) is an important, and sometimes complicated, decision to make.
Wrongful death claims in Georgia are typically divided into two separate claims: (1) the wrongful death per se as measured by the “full value of the life of the decedent” without deducting for any of the necessary or personal expenses of the decedent had he or she lived; and (2) the estate claims, or the claims that would have accrued to the decedent had they lived and include medical expenses incurred prior to death, funeral and burial expenses, conscious pain and suffering prior to death, and punitive damages. The estate claims are filed by the estate’s Administrator or Administratix. The proper plaintiff in the Georgia wrongful death claim, however, depends on the decedent’s surviving relatives. See generally O.C.G.A. § 51-4-1 et seq.
If the decedent was married when they died, Georgia law makes the surviving spouse the proper plaintiff. Representing the spouse will be the most straightforward and advantageous scenario. The surviving spouse then brings the suit on behalf of themselves and any of the decedent’s children. This is not limited to children born to the decedent and the surviving spouse; the Georgia code specifically includes out-of-wedlock children. While the spouse must act prudently, absent exceptional circumstances, the spouse controls any potential action and need not consult or get permission from the decedent’s children in settling the matter, nor – again, absent exceptional circumstances – can the children pursue the claim on their own behalf. Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1311 (11th Cir. 2009) (collecting Georgia cases illustrating when Georgia courts exercised their equitable powers to allow children to file, such as when “the surviving spouse is absent, disabled, has declined to pursue the claim, or has no relation by blood or law to the surviving children.”)