How is a wrongful death claim handled when both parents of the deceased are alive but divorced?
A divorce between the parents of a deceased child does not erase either parent’s connection to the wrongful death claim. When a child dies leaving no surviving spouse and no children, Georgia law looks to the parents as the claimants, and the fact that they no longer live as a married couple changes how the matter is managed and divided rather than whether they may sue at all.
Both divorced parents retain an interest ¶
Under O.C.G.A. § 51-4-4, the right to recover for a child’s death belongs to the parents when there is no surviving spouse or child of the decedent. A divorce does not strip a living mother or father of parental status, so two surviving but divorced parents generally each hold an interest in the single wrongful death recovery. There is one wrongful death claim for the child, not two competing suits, and the parents share it.
Because they no longer act as a unit, Georgia provides a way to sort out their respective shares. The general rule is that surviving parents share the recovery, but where parents are divorced, separated, or living apart, a court can be asked to apportion the recovery fairly. That apportionment looks at each parent’s actual relationship with the child rather than splitting the money automatically down the middle.
Factors a court may weigh in dividing the recovery ¶
When divorced parents disagree about their shares, a Georgia court resolving the division may consider the realities of each parent’s bond with the child, such as:
- Which parent provided support and care during the child’s life.
- The degree of each parent’s involvement and contact.
- Whether one parent abandoned the child or failed to provide support.
A parent who abandoned the child or neglected support obligations may see their share reduced or, in some circumstances, lose the right to recover. The aim is to align the division with the genuine parent-child relationship.
The bottom line ¶
When both parents survive but are divorced and their child dies without a spouse or children, both parents ordinarily share the right to one Georgia wrongful death claim. The divorce affects how the proceeds are split, not the existence of the claim. If the parents cannot agree, a court can apportion the recovery according to each parent’s true relationship with the child, and the closeness, support, and conduct of each parent become central to that decision.
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.