Who Has the Right to File a Wrongful Death Lawsuit?

This post is an excerpt from Attorney Gary Martin Hays and Sarah Jett’s latest best-selling book, The Authority on Wrongful Death Claims in Georgia. As lawyers with extensive knowledge regarding wrongful death cases, they explain who can sue over the wrongful death of a loved one and how a wrongful death attorney can help.

Georgia law sets forth strict guidelines regarding the proper party to bring an action in a wrongful death claim. In general, the following parties can bring a claim in this order:

1. Surviving Spouse

The first person vested with the authority to bring a wrongful death action is the surviving spouse of the decedent. (See O.C.G.A. Section 51-4-2(a)).

However, “if an action for wrongful death is brought by a surviving spouse under subsection (a) of this Code section and the surviving spouse dies pending the action, the action shall survive to the child or children of the decedent.” (See O.C.G.A. Section 51-4-2(b)(1)).

Also, the right to bring the action for the wrongful death of the spouse vests immediately upon the death of the decedent. If the surviving spouse remarries, they do not forfeit the right to pursue the claim.

2. Surviving Children

The next in line to pursue the claim is vested in any surviving children IF there is no living spouse. (See O.C.G.A. Section 51-4-2(a)).

However, “if an action for wrongful death is brought by a child or children under subsection (a) of this Code section and one of the children dies pending the action, the action shall survive to the surviving child or children.” (See O.C.G.A. Section 51-4-2(b)(2)).

Also, please note that under O.C.G.A. Section 51-4-2(f), “the fact that a child has been born out of wedlock shall be no bar to recovery.”

3. Surviving Parents

If the decedent has no surviving spouse or children, then the right to file the wrongful death action is vested in the parents. (See O.C.G.A. Section 19-7-1(c)(2)).

The statute also sets forth what will happen in the event the parents are not together. “If both parents are living but are divorced, separated, or living apart, the right shall be in both parents. However, if the parents are divorced, separated, or living apart and one parent refuses to proceed or cannot be located to proceed to recovery for the wrongful death of a child, the other parent shall have the right to contract for representation on behalf of both parents, thereby binding both parents, and the right to proceed on behalf of both parents to recover for the homicide of the child with any recovery to be shared by the parents as provided in this subsection.”

4. Personal Representative

In the event the decedent does not have a surviving spouse, surviving child or children, or surviving parents, then the cause of action is vested in a personal representative of the estate. (See O.C.G.A. Section 51-4-5(a)).

If there is a dispute as to which party has the right to bring the action for the wrongful death of the decedent, it is typically the defense who will raise the issue. If several parties make a claim and they are not joined in one action, the defendant could find himself in a position of having to defend multiple lawsuits over the same incident. To prevent this from happening, the defendant will often file a declaratory judgment action and ask the court to determine the proper party(ies) that has the right to bring the action. (See O.C.G.A. Section 9-4-2).

If multiple lawsuits have been filed regarding the death of a single individual arising out of the same incident prior to the determination of which party has the right to bring the action, the defendant may move to have all of the actions consolidated. (See Stenger v. Grimes, 260 Ga. 838, 400 S.E.2d 318 (1991)).

Who Can’t File a Wrongful Death Lawsuit?

It is important to note that the wrongful death statute lacks flexibility as it must be strictly construed. For example, siblings (brothers and sisters) of the decedent cannot bring a wrongful death action if there is no surviving spouse or child. Why? They are not vested with the right as a party set forth in O.C.G.A. Section 51-4-2.

Further, even though they are considered “next of kin” for recovery purposes pursuant to O.C.G.A. Section 51-4-5(a), they must have been appointed as the administrator or executor of the decedent.

How an Atlanta Wrongful Death Lawyer Can Help

We know this is a difficult time for you. But you are doing the right thing by looking for answers and pursuing help in your case.

When Gary Martin Hays & Associates handles wrongful death cases, we make sure you and your loved ones are taken care of financially while sending a message to the person or business responsible that their negligent behavior will not be tolerated.

Here are just a few ways our law firm works for you:

• We conduct an independent investigation into the accident.
• We help your family fill out any and all paperwork associated with the case.
• We talk to the insurance companies and others on your behalf so you know your rights are protected.
• We negotiate with the insurance companies on your behalf to achieve the best possible settlement.
• And we represent you in court if the insurance companies refuse to cooperate.

Legal cases are complicated and time-consuming. So, it’s important to talk to a wrongful death attorney about your case as soon as possible.

You owe it to yourself and your family to get the help you need. Pick up the phone and give us a call at (770) 934-8000 to discuss your claim. The phone call is free and completely confidential. There is zero obligation.