Who is the Proper Party to Bring a Wrongful Death Lawsuit in Georgia?

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.”)

Notwithstanding the surviving spouse’s near unilateral right to initiate and settle any suit, the settlement must still be shared equally with the surviving children, except that the spouse’s portion will always be at least one-third of the total recovery.  For example, assume that a wrongful death lawsuit is filed in metro Atlanta by the surviving spouse.  The decedent was also survived by four children.  The wrongful death lawsuit is settled for $1 million.  In such a scenario, the surviving spouse would be entitled to at least $333,333 (before deducting any applicable fees & expenses).  The four children split would then split the remaining two-thirds portion equally amongst themselves.  If the surviving spouse dies before the wrongful death suit is settled or tried to a jury, then the proper parties would be the four surviving children. O.C.G.A. § 51-4-2(b)-(d).

If there is no surviving spouse, the wrongful death claim belongs to the decedent’s children. Note, any child can initiate the wrongful death lawsuit (there can only be one suit) , although the decedent’s other children can still bring a subsequent action to receive a portion of any successful wrongful death claim. See Caldwell v. Evans, 334 Ga. App. 68, 69 (2015) (reaffirming Georgia law that “less than all of the potential plaintiffs may bring” a wrongful death action, potential plaintiffs may then bring a subsequent action for a “proportionate share,” and that only one wrongful death action may be brought against a defendant). A practitioner can readily see how important it is to address the relationship among the surviving siblings at the earliest stage possible in order to avoid problems later on.

Where the decedent is a spouseless child with no children of their own, the wrongful death claim belongs to the decedent’s parents. While the District Court for the Northern District of Georgia held in July 2020 the portion of Georgia’s parental-recovery scheme dealing with unborn children unconstitutional, the decision did not reach other children. Jackson v. Jones, 358 Ga. App. 69, 69 n. 8 (2021) (recognizing decision by District Court for the Northern District of Georgia district court with respect to unborn children). If the parents are living together and not divorced, the right to recover is joint. If they are divorced, separated, or living apart, the right still exists in both parents, but one parent can bind both in representation if the other parent refuses to proceed or cannot be located. Absent a motion to change the distribution, the parents must split any recovery equally. O.C.G.A. §§ 19-7-1; 51-4-4. Again, like with surviving siblings, a lawyer should address the issue of a divorce or separation, if applicable, head on in order to avoid headaches down the road.

Finch McCranie, LLP has represented many families in wrongful death lawsuits in the metro Atlanta area and throughout the State of Georgia for over 50 years. If a loved one has died and you believe a wrongful death claim may be appropriate, please contact us at 404-658-9070 for a free consultation.

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