Wrongful Death Actions in Georgia: Who Has The Right to Sue?

Georgia’s law on the wrongful death of an individual has several unique provisions. If a deceased is survived by a spouse or if there is no surviving spouse, a child or children, either may recover the full value of the life of the decedent as shown by the evidence. A surviving spouse, if there is one, is the sole person who may bring a wrongful death claim. Interestingly, a surviving spouse does not have to be married to the deceased spouse at the time the injuries are inflicted, but only at the time of death, since that is the date the cause of action accrues. The separation by the surviving spouse and the deceased spouse before death is no defense. If there is both a spouse and a child, the spouse has the right to bring the claim but does so in a fiduciary capacity and must divide the proceeds with the surviving children. The spouse is entitled to a minimum of one-third (1/3) of the recovery with the remaining balance to be divided equally between the surviving children. For purposes of the Wrongful Death Act, the fact that a child is born out of wedlock is no defense and there is no requirement of dependency. Minor children and adult children are treated equally. If a surviving child dies, the cause of action survives to the remaining surviving children.
If a decedent leaves no surviving spouse or child, the cause of action vests in the surviving parents. The right in the surviving parents is held jointly if they are both alive and living together. If one parent is deceased the right is in the surviving parent. If both parents are living but are divorced, separated or living apart, the right shall be in both parents. If one parent refuses to proceed or cannot be located to proceed, the other parent has the right to contract for representation for both parents and also the right to proceed on behalf of both parents to recover for the homicide of the child. In a situation where the parents are divorced or separated and one parent brings the claim on behalf of the other, there is a fiduciary duty to divide the proceeds. If the parties cannot agree, the Court can decide based on the relationship of the parents to the child which of the two parents might should receive a greater portion of the funds on grounds of equity.
If a wrongful death decedent leaves no surviving spouse, children or parent, the cause of action is then vested with the Administrator of the Estate who has the right to recover for the full value of the life of the decedent for the benefit of the heirs-at-law. In short, under Georgia law, there is always someone who has the right to proceed for the wrongful death of a deceased individual. Depending upon the individual circumstances, that person may be either the spouse, a child, a parent or a Court Appointed Administrator of the deceased’s estate. Because all cases are factually unique and sometimes the law can be tricky, it is advisable, obviously, that clients with such claims confer with counsel to determine who has the right to bring the wrongful death claim.