Wrongful Death Lawyer Outlines Proper Party to Bring Suit


I am preparing to file suit in a case involving a complex analysis of the proper parties to bring the case. Georgia has a complicated set of statutes that lay out the family’s rights after a wrongful death. There are two claims under Georgia wrongful death law; the claims by the remaining family members for the value of the life lost and the claim by estate of the victim. These are two completely separate claims although the claim for the value of the life lost tends to be the one focused on the most by juries.

Typically the right to file the suit for the wrongful death follows a strict statutory order:

1) If there is only a spouse, they hold the claim. see O.C.G.A. §51-4-2
2) If there is a spouse and children, then the spouse brings the claim but shares the proceeds equally with the children.
3) If there is no spouse, it is held equally by any children.
4) If none of the above, then the claim is held by the parents of the victim. O.C.G.A. §19-7-1
5) If there is none of the above, it gets complicated.

In our case, there were no statutory relatives so we were in category 5. We proceed under O.C.G.A. 51-4-5 which provides that the administrator or executor of the victim’s estate can bring the suit on behalf of the next of kin.

In the case of an out of state victim, you would need to hire a probate lawyer in that person’s home County to get an administrator for the Estate appointed to bring the claim. Any proceeds from the claim would go to the next of kin rather than into the Estate of the victim.

Here is where is gets more complicated. If the victim is survived only by siblings and one of the siblings is dead at the time the case needs to be brought, then under Georgia wrongful death law, the children of the deceased sibling are entitled to their deceased parent’s share of the wrongful death claim for the deceased parent’s deceased sibling. see Stewart v. Bourn Et Al., 250 Ga. App. 755, 552 S.E.2d 450 (2001) In other words, if Steve Smith is killed by a drunk driver and left no spouse, children or parents, then the Georgia wrongful death claim is held by his three sibling Bob, Jim and Mike. Where Mike has already died, Mike’s share of the claim goes to his two kids, Betty and Sarah. Got it?

This example will serve to illustrate why the handling of a Georgia wrongful death claim is so complex. It requires an experienced Georgia wrongful death lawyer to explore the issues and to make sure the statutes are complied with.

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