TL;DR: Under Georgia law, the right to file a wrongful death claim follows a legal order of priority. The surviving spouse has the first right to file, followed by the deceased’s children if there is no spouse. If there are no surviving spouse or children, the parents may bring the claim. When no immediate family qualifies, the personal representative of the deceased’s estate may file on behalf of the next of kin. These rights are outlined in O.C.G.A. §§ 51-4-2, 51-4-5, and 19-7-1.
In Georgia, not every grieving family member has the legal right to pursue a wrongful death claim and that’s where confusion often begins. The law draws clear lines around who may step forward to seek justice, in what order, and for what type of loss. It’s not simply about who feels the pain of the loss most deeply, but who the law recognizes as having the legal standing to represent the deceased person’s interests.
Understanding these rules found primarily under O.C.G.A. §§ 51-4-2 and 51-4-5 can make the difference between a valid claim and one dismissed before it ever reaches a courtroom. Below, we break down exactly who can file, how Georgia determines legal priority, and what happens when no immediate family member is available to act.
Understanding Georgia’s Wrongful Death Law
Georgia’s wrongful death laws are primarily found under O.C.G.A. § 51-4-2 and O.C.G.A. § 51-4-5. These statutes outline who may bring a claim, what damages can be sought, and how compensation is distributed among surviving family members.
In essence, the law gives immediate family members starting with the surviving spouse, the right to seek damages for “the full value of the life of the deceased.” If the spouse does not survive or is not present, that right passes in a specific order determined by law.
1. The Surviving Spouse Has First Priority
Under O.C.G.A. § 51-4-2(a), the surviving spouse of the deceased person has the first right to file a wrongful death claim.
- If the deceased and the spouse had minor children, the spouse must represent their interests in the lawsuit.
- However, Georgia law requires that the spouse receive no less than one-third of any total recovery, regardless of how many children there are.
- The spouse may pursue damages for both economic (lost income, benefits) and non-economic losses (companionship, care, and emotional suffering).
Consider this typical example: If a husband dies in a trucking accident, his wife may file a wrongful death claim even if he has several children. The court ensures she receives at least one-third of the awarded amount, with the remaining distributed among the children.
2. The Children (If No Surviving Spouse)
If there is no surviving spouse, the children of the deceased have the right to bring the claim under O.C.G.A. § 51-4-2(a).
- All children share the recovery equally.
- This includes both minor and adult children.
- If one of the deceased’s children has already passed away, that child’s descendants (the victim’s grandchildren) may also have a claim depending on the circumstances.
If an unmarried mother dies due to medical malpractice, her adult children can jointly file a wrongful death lawsuit to seek justice and recover damages.
3. The Parents (If No Spouse or Children)
If the deceased had no surviving spouse or children, the parents of the deceased have the right to file under O.C.G.A. § 19-7-1(c).
- If both parents are living but divorced, either parent may file the claim, but both must share in any recovery equally.
- If one parent is deceased, the surviving parent may file alone.
If a young adult dies in a workplace accident and is unmarried with no children, his parents can jointly pursue a wrongful death case against the negligent employer or third party.
4. The Estate’s Representative (If No Family Members Qualify)
If the deceased has no surviving spouse, children, or parents, the right to file passes to the personal representative of the estate, as stated in O.C.G.A. § 51-4-5(a).
- The estate representative (often named in the will or appointed by the probate court) files the claim on behalf of the deceased’s next of kin.
- Damages recovered are then distributed according to the deceased’s estate plan or Georgia’s intestate succession laws (if there is no will).
This type of claim typically seeks compensation for:
- Medical bills and funeral expenses
- Conscious pain and suffering before death
- Other damages incurred by the estate
5. How Georgia Divides Wrongful Death Claims
It’s important to note that Georgia law allows for two separate wrongful death actions:
- The “Full Value of Life” Claim – Filed by family members (spouse, children, or parents) for the loss of companionship, income, and support.
- The Estate Claim – Filed by the personal representative to recover medical bills, funeral costs, and pain and suffering endured by the deceased before death.
These claims are often filed together but serve distinct legal purposes.
Why Legal Representation Matters
Determining who can file and how to properly structure a wrongful death case in Georgia can be complex. Disputes sometimes arise among family members or over the distribution of damages. Having an experienced Georgia wrongful death attorney ensures that your claim complies with all statutory requirements, that all eligible family members are represented, and that your family receives the full compensation allowed under Georgia law.
Conclusion
Only specific individuals have the right to file a wrongful death claim in Georgia and understanding this legal hierarchy is crucial to protecting your family’s interests. Whether you are a surviving spouse, child, or parent, taking timely legal action can help secure justice and financial stability after an unexpected loss.
If you’ve lost a loved one due to someone else’s negligence, contact Georgia Wrongful Death Attorney P.C. Our compassionate legal team will help you navigate the process, protect your rights, and pursue the justice your family deserves. Contact us today for a free case evaluation.