Wrongful Death Of A Child Where The Parents Are Divorced Or Separated

Georgia has an “equitable apportionment” statute which essentially states that either parent of a deceased child, when divorced, separated or living apart, may file a lawsuit for the wrongful death of their child, notwithstanding the divorce or separation. In such a case, the parent that brings the wrongful death case does so in a fiduciary capacity proceeding not only on their on behalf but also on behalf of the divorced/separated spouse who obviously also has a legal interest in the death of their child.
Where divorced parents get along well even after the divorce, they may sue jointly. The difficulty comes where the parents do not get along and one proceeds before the other. Sometimes the other parent has to move to intervene in a lawsuit to protect their interests because they do not trust their spouse. Under Georgia law, even in such cases where neither spouse trusts the other, the fact is that the law provides that one spouse that proceeds in a divorce/separation situation for the wrongful death of a child, nonetheless, proceeds jointly on behalf of their divorces spouse.
In the event there is a recovery for the wrongful death of a child in the situation where the parents are divorced, the law provides for an “equitable apportionment” of any recovery between the divorced parents. A court will decide who gave the most child support, on whom did the child depend for support and issues of a similar nature in determining which parent equitably should receive the largest portion of the wrongful death award, if any. If a parent has abandoned their child, paid no child support, had nothing to do with the child, most courts would not award such a parent anything from the recovery although the court would be authorized to award whatever it deemed to be in the interest of justice based on the facts and circumstances. In most cases the courts would probably plan to divide the proceeds on a 50/50 basis unless there was clear evidence that one spouse had abandoned the child, was abusive to the child, did not pay child support or was not involved in the child’s life. In such circumstances, the spouse that did the most for the child and was the closest to the child would probably receive most, if not all of the award although, once again, the court would be required to equitably apportion the damages based on its own assessment of the equities involved.

To further complicate this matter, in situations where there was pre-death pain and suffering, funeral bills, medical expenses and other expenses that belong to the personal representative of the estate of the decedent or, again, to the custodial parent responsible for such expenses, if there was a recovery for this portion of the claim, the recovery would be divided on a 50/50 basis unless the court believed that there were equitable considerations which would require a different apportionment.
If the parents cannot work out by agreement how the money should be divided, there will have to be a court hearing and the court will be the final arbiter of such an award. Both parents are entitled to be represented by counsel at such a hearing and present whatever evidence they believe should be equitably considered by the court. Such situations are always difficult because a child has died, which is emotionally traumatic in and of itself. To have divorced parents still fighting over the proceeds from the child’s death is often a very sad spectacle. Nonetheless, the law does have provisions for the equitable apportionment of a wrongful death award where a child dies due to the negligence of a third party.
The typical case we see equitable apportionment issues arises where a child dies, for example, in an automobile collision in which the child was killed while in the custody of one parent even though the other parent shared joint custody or joint physical control over the child on a limited basis. In such circumstances, it is best for the parents to proceed jointly, but if they cannot, then the parent who had the most contact with the child should bring the lawsuit for the benefit of each and, if and when an award is rendered, at that time, the parties represented by separate counsel can present their competing claims to the court, who will decide how the proceeds should be equitably divided.

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