Under OCGA §§ 19-7-1(c) and 51-4-4, when a child dies unmarried and without children, then the parents normally have the right to bring the wrongful death lawsuit on their behalf. If the parents are divorced they both have an equal right to bring the claim and must share in the proceeds. Note that if one of the parents was the cause of the death, that parent would logically be barred from bringing the claim. See Belluso v. Tant, 258 Ga.App. 453.
What about a case where the parent and the child had a less than perfect relationship? If the relationship is so fractured between the parent and child or never existed at all, the wrongful death claim can be lost to that parent. Dove v. Carver, 197 Ga.App. 733, 735, (1990) Under OCGA § 19-7-1(b)(3), parents must provide and care for their children. In order to find the rights lost, “there must be clear and convincing evidence of an actual desertion, accompanied by an intention to sever entirely the parental relation.” Uniroyal Goodrich Tire Co. v. Adams, 221 Ga.App. 705, 706(1), (1996).
Examples would be refusing to pay child support, failing to call or write for extended periods of time. Baker v. Sweat, 281 Ga.App. 863 (Ga. App., 2006)
Lawyers should be cautious when representing clients in statutory wrongful death claims and representing the Estate’s claim at the same time because the interests can diverge. Consider that where a spouse dies, the surviving spouse might be entitled to recover 100% of the Estate claim if there is a will and has to divide the statutory claim with the children. It is in the widow’s interest to settle the case and allocate most of the money to the Estate claim. Therein lies the danger to the lawyer.
It is undisputed that the spouse controls choice of counsel and is the decision maker. OCGA § 51-4-2(c)
Home Ins. Co. v. Wynn et al., 229 Ga. App. 220 (1997) explains the danger to the widow and the lawyer. Both the widow and the lawyer owe fiduciary duties to the various children and beneficiaries of the Estate. It would seem that the best practice is to confirm in writing with all claimants the settlement decisions and to get conflict counsel where necessary.