Wrongful Death Actions In Georgia: Who Has The Right To Sue?

The status of the decedent by in large determines who has the right to sue in a wrongful death case. Where someone is killed through the negligent acts of a third party, such as a truck driver or product manufacturer, Georgia law proscribes who has the right to sue such a cause of action. If the person is married at the time of his or her death, the surviving spouse has the right to bring a cause of action for the wrongful death of the decedent. If the decedent is not survived by a spouse, but is survived by children, then the decedent’s children have the cause of action. If the decedent dies without any spouse or children, then the decedent’s parents have the cause of action. If the decedent dies with no surviving spouse, children or parent, then in that event, the administrator of the decedent’s estate has the cause of action and may bring it for the benefit of any remaining relatives. In short, under Georgia law, there is a hierarchy of those who are allowed to bring wrongful death cases but someone is always authorized under the law to bring such a case where the decedent’s death was caused by the negligent acts of a third party.
At our firm we have handled many different wrongful death cases for all of the above categories. We have represented widows, widowers, parents, children and estate representatives. In those cases where the cause of action is vested with a surviving spouse, to the extent the decedent was also survived by children, the spouse proceeds in a fiduciary capacity. In the event of a recovery, the spouse has to divide the recovery with remaining children, but in no event will the spouse receive less than one-third (1/3) of the recovery regardless of the number of children. In short, if there are multiple children, the spouse will receive one-third (1/3) and the children will divide equally the remaining two-thirds (2/3) of any such recovery.
It is important that counsel determine whether a potential client is vested with a cause of action in considering whether a wrongful death case exists. We have been approached many times by siblings, ex-spouses, step-children and the like in situations where there is no valid cause of action that may be brought y the person involved. In Georgia, the law sets forth the classifications of those that are legally authorized to bring wrongful death actions. While a step-child or grandparent or other third party might, under certain circumstances, conceivably have a claim, it would only be in those circumstances where they were appointed as representative of the estate and no one else was statutorily recognized to bring the case. Again, such inquiries must be made when the case is initially being evaluated, because the law sets forth procedurally who has the right to bring the claim.

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