Who has the first right to bring a wrongful death lawsuit in Georgia?

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The surviving spouse holds the first right to bring a wrongful death action in Georgia. Georgia’s wrongful death statutes set a clear order of priority, and the right passes down that order only when no one in a higher position exists. This ranking is fixed by law, so it is not a matter of which relative files first.

The order of priority

Under O.C.G.A. § 51-4-1 and following, the right to sue for a person’s wrongful death generally follows this sequence:

  • The surviving spouse has the primary right to bring the claim for the death of a spouse.
  • The decedent’s child or children may bring the claim if there is no surviving spouse.
  • The decedent’s parents hold the right in the case of the death of a child, under the provisions governing a child’s death.
  • The administrator or executor of the estate may bring the action when no one is entitled to sue under the preceding categories, recovering for the benefit of the next of kin.

The right belongs to the highest-ranking category that exists. If there is a surviving spouse, the children do not bring the claim on their own; instead, the spouse brings it.

How a spouse’s recovery is shared

Although a surviving spouse brings the action, the spouse does not necessarily keep the entire recovery when there are children. Georgia provides that the proceeds are divided among the surviving spouse and the children, with the spouse guaranteed a minimum share that cannot fall below one-third of the recovery, regardless of the number of children. So the spouse controls the claim, but the children retain a defined interest in the result.

When the estate steps in

The administrator or executor brings the claim only as a backstop, when there is no surviving spouse, child, or other person entitled to sue under the statute. In that situation the personal representative pursues the recovery for the next of kin. A related estate action also exists for the decedent’s own pre-death losses and for funeral and medical expenses, but that is a separate claim from the wrongful death action itself.

The bottom line

In Georgia the surviving spouse has the first right to bring a wrongful death lawsuit, followed by the decedent’s children, then, in the appropriate circumstances, the parents, and finally the estate’s representative when no one else qualifies. The order is set by statute, and where a spouse sues with children, the recovery is shared with the spouse guaranteed at least one-third.

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.

Related:

  1. Can a Georgia family bring both a wrongful death claim and an estate claim for one death? Yes. A single fatal incident in Georgia can support both a wrongful death claim and the estate's survival claim at the same time, and bringing one does not waive the......
  2. Can a child born after the parent’s death share in a Georgia wrongful death award? A child who was conceived before a parent died but born afterward can generally share in that parent's Georgia wrongful death recovery. Georgia law has long protected the interests of......
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  4. Can an unmarried partner bring a wrongful death claim in Georgia? A romantic partner who was never legally married to the person who died generally cannot file a Georgia wrongful death claim, no matter how committed or long-standing the relationship was.......
  5. Can parents bring a wrongful death claim for an adult child in Georgia? Yes. The right of a mother and father to sue does not end when their child becomes a legal adult. Georgia's wrongful death statute looks to family relationships and the......
  6. What happens if the survivor entitled to sue refuses to bring the wrongful death case? Georgia channels the right to sue for wrongful death to a specific survivor, such as a surviving spouse, but that person holds the claim partly for the benefit of others,......
  7. Who decides what a person’s life was worth in a Georgia wrongful death case? The jury decides. In a Georgia wrongful death case that goes to trial, valuing the lost life is the jury's job, and Georgia gives the jury unusually broad latitude to......
  8. Do all the children of the decedent split the wrongful death proceeds equally in Georgia? Among themselves, the decedent's children generally share equally, but their portion depends on whether a surviving spouse is also in the picture and on whether any child died before the......
  9. Does a Georgia court have to approve a wrongful death settlement involving minor children? When minor children are beneficiaries of a wrongful death recovery, Georgia courts play a protective role, and settlements affecting a minor's interest generally require court involvement before the minor's share......
  10. 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......
  11. Is a Georgia wrongful death recovery based on the decedent’s gross or net earnings? The economic part of a Georgia wrongful death recovery is based on the decedent's gross earnings, not earnings reduced by what the decedent would have spent on personal needs. Georgia......
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