Which Family Member Controls the Wrongful Death Claim in Georgia?


Georgia wrongful death laws are very specific about which family member controls the statutory death claim. I received a call from a daughter in Alaska asking about the death of her mother in a car accident and wondering whether the step-father controlled the case or whether she and her brother took priority on the claim. Given that we only practice in the South, I advised her to contact a wrongful death lawyer in Alaska but the question is an important one. This article will address which family member controls the wrongful death claim in Georgia.

Georgia law states that there are two distinct claims; the claim created by the Georgia Wrongful Death statute which is held by the family and the Estate of the deceased’s claim. In most cases, the wrongful death claim created by the statute is the most important one as it is for the whole value of the life of the deceased, economic and non-economic. An experienced wrongful death lawyer is a must for handling a case like this but here is the breakdown on who controls the claim.

1) If the deceased was married, it is the spouse’s claim to control. O.C.G.A. §51-4-2 (read how the Court handles this in Tolbert v. Maner)

2) If married and had children, the spouse controls but has to give 50% of the money to the children.O.C.G.A. §51-4-2

3) If there is no spouse or child of the deceased, then the parents of the deceased control the claim. O.C.G.A. §19-7-1.

4) If there is none of the above, then a personal representative is appointed by the probate court.O.C.G.A. §51-4-5. The representative controls the claim but any money obtained is obtained for the next of kin as defined under the deceased’s will or probate law.

The other Georgia wrongful death claim is held by the estate and it includes medical bills incurred by the deceased, the deceased’s pain and suffering before death and funeral costs. If the deceased relative lived even for a few minutes after the injury, the estate claim can become very valuable. These two claims are completely separate and can be brought by different people.

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