When a person dies because of another party’s wrongful conduct in Georgia, the surviving family often incurs the cost of a funeral and burial. A common question is whether those expenses can be recovered from the responsible party. Under Georgia law, funeral and burial expenses are recoverable, but they belong to a particular part of the overall claim. Understanding which claim covers them helps explain how Georgia law handles these costs.
This guide explains how funeral and burial expenses fit within a Georgia wrongful death case.
Two Separate Claims Arise From a Wrongful Death
Georgia law actually recognizes two distinct claims when a person dies because of another party’s negligence or wrongful act. The two claims arise from the same event but compensate different losses and are brought by different parties.
The first is the wrongful death claim under O.C.G.A. Section 51-4-2. It is brought by surviving family members and seeks the full value of the life of the decedent.
The second is the estate claim, sometimes called the estate’s claim or a survival-type claim, brought under O.C.G.A. Section 51-4-5. It is brought by the administrator or executor of the decedent’s estate and seeks certain expenses and losses connected to the injury and death.
Funeral and burial expenses fall within the second claim, the estate claim, not the wrongful death claim itself.
Why Funeral Expenses Belong to the Estate Claim
The wrongful death claim under O.C.G.A. Section 51-4-2 measures the full value of the life of the decedent. That measure is built on the economic and intangible worth of the life that was lost, considered from the decedent’s own perspective. Funeral and burial costs are not part of that measure, because they are expenses incurred after death rather than a measure of the value of the life.
Instead, Georgia law channels funeral and burial expenses into the estate claim under O.C.G.A. Section 51-4-5. That statute allows the estate to recover expenses connected to the injury and the death. Funeral and burial expenses, along with the decedent’s medical expenses and other necessary expenses resulting from the injury and death, fit within this category.
What the Estate Claim Covers
The estate claim under O.C.G.A. Section 51-4-5 generally covers several categories of loss. These can include the decedent’s medical expenses related to the injury, funeral and burial expenses, and the conscious pain and suffering the decedent experienced between the injury and death. Where the decedent survived for a period before dying, the estate claim may also address losses tied to that interval.
Funeral and burial expenses within this claim typically refer to reasonable and necessary costs associated with the funeral service and the burial or cremation. As with other items of damages, these costs generally must be supported by evidence rather than estimated arbitrarily.
Who Brings the Estate Claim
Because funeral and burial expenses are part of the estate claim, the person who brings that claim is the personal representative of the decedent’s estate, meaning the administrator or executor. This is different from the wrongful death claim, which is brought by the surviving spouse or, if there is no spouse, the children, and so on through the statutory order of priority.
In many cases, the same family is involved in both claims, and the two claims are pursued together in a single lawsuit. They remain legally distinct, however, and the recovery for each is treated separately.
How the Recovery Is Distributed
The distinction between the two claims also affects how money is distributed. A wrongful death recovery under O.C.G.A. Section 51-4-2 is divided among the surviving spouse and children under the sharing rules in that statute, and it is generally protected from the decedent’s creditors.
The estate claim recovery, including the portion attributable to funeral and burial expenses, becomes an asset of the estate. It is administered and distributed according to the law governing estates, including the decedent’s will or the rules of intestate succession when there is no will. Because it is an estate asset, it may also be subject to the ordinary administration of the estate.
Comparative Negligence Still Applies
Like other damages in a Georgia wrongful death matter, recovery for funeral and burial expenses is subject to the modified comparative negligence rule under O.C.G.A. Section 51-12-33. If the decedent is found partly at fault for the events causing death, the recoverable amount can be reduced by the decedent’s percentage of fault, and recovery can be barred if the decedent is found 50 percent or more at fault. The comparative negligence analysis applies to the claim as a whole.
Summary
Funeral and burial expenses are recoverable in a Georgia wrongful death case, but they are part of the estate claim under O.C.G.A. Section 51-4-5 rather than the wrongful death claim under O.C.G.A. Section 51-4-2. The wrongful death claim measures the full value of the life of the decedent, while the estate claim covers expenses connected to the injury and death, including medical expenses, funeral and burial costs, and pre-death pain and suffering. The estate claim is brought by the personal representative of the estate, and its recovery is administered as an estate asset. Like other damages, these amounts are subject to Georgia’s comparative negligence rule.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how Georgia law works as a matter of public legal education, and it does not constitute legal advice, a legal opinion, or a recommendation about any particular course of action. Reading this article, or contacting the website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author.
The law changes over time. Statutes, regulations, court rules, and judicial decisions discussed here may have been amended, repealed, superseded, or reinterpreted after the date of publication, and citations to specific code sections or cases reflect the law only as it was understood when this article was written. The application of any legal principle also depends heavily on the specific facts and circumstances of an individual matter, and outcomes vary from case to case.
For these reasons, no one should rely on this article as a substitute for advice from a licensed Georgia attorney who can review the particular facts involved. The author and publisher make no warranty, express or implied, regarding the accuracy, completeness, timeliness, or applicability of the information provided, and disclaim any liability for any action taken or not taken based on this content.