Georgia Wrongful Death Actions:Who Has The Right To Sue? (Part I)

One of area of confusion to the public is determining who has the right to bring a wrongful death action in Georgia. Because our firm handles many such cases in Atlanta and throughout the State, we have decided to blog on this area of the law so that the public will better understand the provisions of Georgia law which control wrongful death actions.
In this article we shall focus on the rights of a spouse who is married to an individual killed by the negligence of a third party. In all such cases, where the decedent is married at the time of death, only the surviving spouse may bring a wrongful death action. Interestingly, however, any spouse that brings a wrongful death action on behalf of a deceased partner does so in a fiduciary capacity if children are involved.
O.C.G.A. § 51-4-2(a) provides that:
“The surviving spouse, or if there is no surviving spouse, a child or children, either minor or sui juris, may recover for the homicide of the spouse or parent the full value of the life of the decedent, as shown by the evidence.”
What this code section means is that if an individual is killed through the negligence of a third party and the decedent is married, the surviving spouse has the right to bring a wrongful death action in Georgia courts. If the deceased individual was not only married but had children, then the surviving spouse has to divide any recovery with such children on a pro-rata basis provided the surviving spouse shall in no event receive less than one-third (1/3) of the recovery as such spouse’s share.
If a married individual dies and has children, as stated, only the spouse may file a wrongful death action in Georgia. A child has no right to bring a wrongful death action if the parent is living unless the spouse refuses to bring such an action. While the spouse is vested under Georgia law with the sole authority to bring the lawsuit, if there is a collection by way of a jury verdict, a judgment or settlement, the spouse has to divide the proceeds equally with surviving children provided the spouse shall in no event ever receive less than one-third (1/3) of the total amount collected, minus attorney’s fees and expenses where applicable. The fact that a child has been born out of wedlock is no bar to recovery by that child with respect to such child’s pro-rata percentage of any settlement funds.
What is interesting about Georgia law is that a surviving spouse owes a duty to surviving children and can even be held liable to them for breach of that duty as their representative. Any lawyer representing a surviving spouse who pursues a wrongful death action must take care to protect the interest of all beneficiaries, both in prosecuting the claim and in disbursing the proceeds of a Georgia wrongful death case.