Georgia Wrongful Death Law FAQ

Answers to Your Questions About Wrongful Death in Georgia

Under Georgia’s Wrongful Death Act, if a person is killed by the wrongful act of another person or business, then the surviving family has the legal right to pursue a wrongful death claim. The family of the person who died can bring a claim for “the full value of the life of the decedent.”

The Wrongful Death Act in Georgia is found in O.C.G.A § 51-4-2, and this page addresses the civil justice system, as opposed to the criminal justice system which is controlled by the district attorney in each county.

What is a wrongful death claim?

Georgia law classifies a death as wrongful if it was caused by another person or business without legal justification.

A person who takes another person’s life has caused a wrongful death.  Most wrongful deaths are caused by reckless or negligent conduct. Negligence means carelessness. For instance, a driver who makes a right turn on red and kills a pedestrian in a crosswalk has caused a wrongful death.  Or, an apartment complex that knowingly allows violent crime to occur on its property and does not try and stop that crime from occurring can be held responsible for a wrongful death that results because of future crime.

The civil justice system is intended to compensate the surviving family members for the wrongful death of their loved family member.

Who can bring a wrongful death lawsuit in Georgia?

Married at time of death:

In cases where the deceased victim was married, O.C.G.A § 51-4-2 authorizes the deceased victim’s spouse to bring a wrongful death claim. If the victim was not married, any of the victim’s surviving children can bring the claim. Court decisions also authorize the children to bring a claim if a surviving spouse is unwilling or unable to do so, or if the spouse caused the victim’s death.

Unmarried and no children:

When the victim died without a spouse or children, O.C.G.A § 19-7-1(c)(3) authorizes the victim’s parents to bring a wrongful death claim. They can bring the claim jointly if they are married and living together. If they are separated or not married to each other, either parent can bring the claim if the other refuses. If one parent has died, the living parent can bring the claim.  Both parents are vested with the right to bring a case; barring unusual circumstances both parents must share equally in the recovery.

Unmarried, no children, and no parents:

When a wrongful death victim dies with no surviving spouse, children, or parents, O.C.G.A § 51-4-5 authorizes the victim’s estate to bring a wrongful death claim. That claim is commenced by the administrator of the victim’s estate. Whether the victim had a Will does not affect the right of the estate to seek wrongful death compensation.

What is an Estate Claim?

The victim’s estate can also bring an independent claim to recover burial expenses, any medical bills associated with the cause of death, and compensation for pain and suffering as well as pre-impact fright, shock, and terror the victim experienced prior to death.  The estate claim is sometimes mistakenly overlooked by lawyers.  Here’s an example of where the estate claim can be valuable: we represented a woman in Florida whose father was killed after his pickup truck lost control on the road because a dump truck had dropped its load on the highway.  Our client’s father lost control and skidded into the very dump truck that had dropped its load on the road.  The seconds between the time that the man lost control and the time that he knew he was about to die were important.  That pre-impact fright, shock, and terror were all part of the recovery that the estate claim made. We successfully recovered several hundred thousand dollars for those precious seconds. That claim was brought by the estate, and was therefore separate and in addition to the recovery made in the wrongful death action.

If the Estate is entitled to bring a wrongful death claim, the Administrator of the Estate will often bring both a Wrongful Death Claim and an Estate Claim in the same lawsuit.

Even when a wrongful death claim is brought by a surviving spouse, child, or parent, it is typical for the wrongful death claim to be joined with an estate claim in the same lawsuit. The administrator of an estate will often be the same person who is authorized to bring a wrongful death claim, but even if they are different people, the two claims are commonly joined in a single lawsuit.  Again, though it is important to remember that the two claims are different.  In situations where there are limited resources to recover, a lawyer must be mindful of his duties to both the estate claim and the wrongful death claim.  Those two claims can possibly compete with one another, and therefore it is important that the lawyer the family hires understands his duties. 

How is wrongful death compensation determined in Georgia?

Georgia juries award compensation based on what the victim lost, not on what the surviving family members lost. The jury must determine wrongful death damages from the perspective of the victim, not the victim’s family.

Full value of the life:

O.C.G.A § 51-4-2(a) authorizes an award of compensation for the “full value” of the victim’s life.  The “full value of the life” is measured from the point of view of the person who was killed.  Brock v. Wedincamp, 253 Ga. App. 275, 281-82 (2002).  The “full value of the life” has two parts: economic and noneconomic components.

The economic value of a life consists in part of the additional income that the victim would have earned if the victim had lived an average lifespan. Income includes wages, benefits (such as an employer’s contribution to a retirement plan), and investment income the victim would probably have earned. Our wrongful death lawyers often work with economists and vocational experts to determine the present value of future lost income.  Economic value also includes the value of the services that the victim would have performed. Landscaping, painting the house and preparing meals are examples of services that have value.

The noneconomic component of “full value” is sometimes called “intangible” value. There is no yardstick for measuring noneconomic loss. Juries understand, however, that every life has substantial value that cannot be measured solely by the victim’s earnings.

As seen from the victim’s perspective, the loss of life means the loss of doing things that the victim found meaningful or enjoyable. Playing with grandchildren, socializing with neighbors at a barbeque, getting married, spending quiet evenings with a spouse, running outdoors, walking a pet, and any other activities that someone may have enjoyed are among the pleasures of life that end with death.  Some people enjoy hunting. Others like to swim or play tennis. It is incredibly hard to put any value on any life; valuing a life involves showing a jury how much satisfaction and joy the victim lost because of a premature death.  Our experienced wrongful death lawyers know how to tactfully and persuasively show a jury what it means.

How is wrongful death compensation distributed in Georgia?

Wrongful death compensation does not belong entirely to the person who brings the claim. O.C.G.A § 51-4-2(d)(1) requires the compensation to be distributed in a specific way.

If the victim was survived by a spouse and no children, all of the compensation is distributed to the spouse. If the victim was survived by a spouse and no more than two children, the spouse and children each receive an equal share of the compensation.  What happens if a surviving child dies while he and his siblings are pursuing a wrongful death case for their parent?  This is tricky.  Some lawyers make the mistake and read the statute to say that if a child of the victim died before the victim died, then that child’s share of the compensation is divided equally among that child’s children i.e. the decedent’s grandchild(ren).  That reading is a mistake.  Under the case law of Tolbert v. Maner, 271 Ga. 207 (1999), a Georgia Supreme Court case from 1999, the grandchild(ren) of the deceased child only recover their parent’s recovery portion if their parent was alive at the time that the wrongful death action commenced. As the Wrongful Death Act makes clear, only when a decedent’s child is an original claimant in a wrongful death action, and only when that child dies during the pendency of the claim, can the child’s descendants, i.e. the grandchild(ren) share in any recovery.

O.C.G.A § 51-4-2(d)(2) holds that the surviving spouse must receive one-third of the compensation if the victim had more than two children. If the victim was married and had children, the surviving spouse must share the recovery equally with the children.  However, regardless of how many children there may be, the surviving spouse must always receive no less than one-third of the recovery, and the remaining two-thirds is divided equally among the children.

When a victim has no surviving spouse, children, or grandchildren, O.C.G.A § 19-7-1(c)(2) provides that the victim’s parents will share the compensation equally if they are still married and living together. If only one parent is living, that parent receives all the compensation.

When parents are divorced or separated, O.C.G.A § 19-7-1(c)(6) allows either parent to ask a judge to apportion the compensation “fairly” between the two parents. Our wrongful death lawyers almost always recommend that parents agree to divide the compensation equally. That strategy is likely to maximize the total compensation awarded, since a parent who disparages a victim’s relationship with the other parent is providing ammunition that insurance company lawyers will use to argue for a lower award of compensation.

The proceeds of wrongful death claims brought by a victim’s estate and of estate claims are distributed according to the victim’s Will. If the victim had no Will, compensation is distributed under the Georgia intestacy law that governs the distribution of estates when Georgia residents die without a Will.

How long does a family have to bring a Wrongful Death claim in Georgia?

Generally, a wrongful death claim must be filed within two years of the death, but that time called “the statute of limitation” can sometimes be extended, though it can also sometimes be shortened.

The statute of limitation can be longer than two years and be delayed for up to six years:

If someone is killed because of a criminal act (which includes serious crimes and traffic accidents where the at-fault driver is ticketed by the officer), the time can be “tolled” aka extended.  A crime does not have to be intended and even simple traffic accidents can be considered a crime. O.C.G.A. § 9-3-99.  What that means is that in any motor vehicle crash where the at-fault driver received a citation, the statute of limitation for the wrongful death lawsuit is tolled from the date of the violation until a final disposition of the traffic charge or for six years, whichever is shorter. Harrison v. McAfee, 338 Ga. App. 393, 402 (2016). The two year period statute of limitation starts running after that date.

The statute of limitation can be shorter than two years:

If the government caused the person’s death (for example, if a county police officer crashed into the person), the deadline could be shorter.  The amount of time to bring the case depends on which branch of government is involved, and an ante litem deadline may govern.  Sometimes, the statute of limitation can be as short as six months.

Helping you make educated decisions

If you are reading this page because you have lost a family member, we are sorry for your loss. We hope that the above information has been helpful.

Please understand that Georgia’s wrongful death laws and the interplay between the wrongful death claim and the estate claim require deliberate thought.  What we try and do at our personal injury law firm is to educate our clients so that our clients can make an educated decision that is best for them and their family members.

Our compassionate and experienced wrongful death lawyers at Tobin Injury Law understand how to help surviving family members receive the full value of a loved one’s life.  If you have additional questions about Georgia’s wrongful death laws, we welcome you to reach out to us for a free private consultation by calling 404-JUSTICE (404-587-8423).  It costs no money to talk with us. We don’t bill per hour; we don’t charge a retainer; and we don’t charge a flat fee.  We only get paid at the end once we win the case and make sure you are paid first.  Our fee is a percentage of what we win at trial or settlement.

We welcome you to call us; we promise to spend whatever time you need to make sure you have the information you feel you need to make the best decision for you and your family.