How is a Georgia wrongful death award divided among the spouse and children?
A Georgia wrongful death award is split among the surviving husband or wife and the decedent’s children using an equal-share method, adjusted by a guaranteed minimum for the spouse. The claim is brought as one case, and the proceeds are then allocated by formula rather than by negotiation.
The per capita method ¶
O.C.G.A. § 51-4-2 directs that the recovery be divided among the surviving spouse and the children “share and share alike,” counting each person as one equal share. This is called per capita distribution. Five beneficiaries, for example, would each start at one-fifth before any adjustment. The children do not split a separate “children’s portion”; instead, every child and the spouse occupy an equal place in the count.
When a child of the decedent has already died but left descendants of their own, those descendants step into the deceased child’s place and take that single share per stirpes, dividing it among themselves. This keeps a grandchild from being cut out simply because their parent did not survive, while preventing that branch from taking more than the one share the deceased child would have held.
The spouse’s guaranteed one-third ¶
The equal-share count is subject to an override. The statute provides that the surviving spouse must receive no less than one-third of the total recovery. This floor matters only when there are three or more children, because that is when an equal split would otherwise leave the spouse with less than a third. In that situation:
- The spouse takes one-third off the top.
- The children divide the remaining two-thirds equally among themselves (with any deceased child’s branch taking per stirpes).
With zero, one, or two children, the ordinary equal split already gives the spouse at least one-third, so no adjustment is needed.
The bottom line ¶
Georgia divides a wrongful death award per capita among the spouse and children, with descendants of a deceased child taking that child’s share per stirpes, and with the spouse guaranteed at least one-third of the whole. The number of children drives the result: small families split evenly, while larger ones trigger the spouse’s protected minimum and an equal division of the remainder among the children.
This article is for general educational and informational purposes only and is not legal advice. It does not create an attorney-client relationship, and Georgia law may change. For advice about a specific situation, consult a licensed Georgia personal injury attorney.