When a parent dies because of another party’s wrongful conduct, the deceased person’s children may hold rights under Georgia’s wrongful death law. A natural question is whether the ordinary filing deadline is extended when a child involved in the claim is still a minor. Georgia law does provide for tolling, meaning a pause in the running of a limitations period, for minors. Whether that tolling actually extends a wrongful death deadline, however, depends on a key distinction in Georgia law between a minor who holds the right to sue and a minor who is only a beneficiary of the recovery.
The General Wrongful Death Deadline
Georgia wrongful death claims are generally subject to a two year statute of limitations, applying the two year personal injury period found in O.C.G.A. 9-3-33. The clock ordinarily starts on the date of death. If the wrongful death claim is not filed within that period, it is generally barred. This two year rule is the baseline against which any extension must be measured.
Georgia’s Tolling Provision for Minors
Georgia law recognizes that minors are not in a position to protect their own legal rights, so it tolls certain limitations periods during minority. The relevant provision is O.C.G.A. 9-3-90. In general terms, when a person who is entitled to bring an action is a minor, the time during which the person is a minor is not counted against the limitations period. The effect is that the clock can begin to run when the minor reaches the age of majority, which is eighteen in Georgia, giving the former minor a period after that point in which to file.
The crucial question for wrongful death cases is not whether this tolling provision exists. It does. The question is when it actually applies to a wrongful death claim.
Holder of the Right Versus Beneficiary
Georgia wrongful death law assigns the right to bring the claim according to a defined order. The surviving spouse stands first under O.C.G.A. 51-4-2. If there is no surviving spouse, the right passes to the deceased person’s children. The children, whether minor or adult, may then be the parties who hold the claim.
This produces two very different situations.
In the first situation, an adult holds the right to sue. For example, if a married parent dies, the surviving spouse holds the wrongful death claim. The couple’s minor children may benefit from the recovery, because the spouse shares the proceeds with the children and the spouse’s share cannot be less than one third under O.C.G.A. 51-4-2. But the minor children in this situation are beneficiaries, not the holders of the right to sue. The adult spouse is the proper plaintiff. In that case, the standard two year deadline generally applies, and the minority of the beneficiary children does not by itself extend it. The adult who holds the claim is expected to act within the ordinary period.
In the second situation, a minor actually holds the right to sue. For example, if a parent dies leaving no surviving spouse, the right to bring the wrongful death claim passes to the children. If a child who holds that right is a minor, the minority tolling provision in O.C.G.A. 9-3-90 can apply to that child’s claim. The limitations period can be tolled during the child’s minority, with the time to file generally measured from when the child reaches the age of majority. In this situation the deadline can effectively be extended for the minor who holds the claim.
Why the Distinction Matters
The difference between holding the claim and benefiting from it is the heart of the issue. Tolling for minority protects the person who has the legal right to sue but lacks the capacity to do so. When an adult holds the right, that protective rationale does not apply, because a capable adult is available to bring the claim on time. When the minor is the one who holds the right, the rationale applies fully, and the tolling provision can extend the period.
Because a single death can involve both adult and minor family members in different roles, the analysis turns on identifying who actually holds the wrongful death claim under Georgia’s statutory order, and whether that person is a minor.
The Separate Estate Claim and Other Timing Rules
A death can also give rise to a separate estate claim, brought by the personal representative of the estate, covering items such as medical expenses, funeral costs, and conscious pain and suffering before death. The estate claim follows its own timing rules. Georgia law also allows the estate’s claim to be tolled for a period of up to five years while no personal representative has been appointed. That estate tolling is a different mechanism from the minority tolling discussed above and should not be confused with it.
In addition, when a death involves a government entity, separate ante litem notice deadlines apply, such as the twelve month notice requirement under the Georgia Tort Claims Act and the notice requirements that apply to counties and cities. Those notice deadlines operate independently of both the two year limitations period and the minority tolling provision.
Conclusion
A minor’s connection to a Georgia wrongful death claim can extend the filing deadline, but only in a specific way. If a minor actually holds the right to bring the wrongful death claim, Georgia’s minority tolling provision in O.C.G.A. 9-3-90 can pause the limitations period during the minor’s childhood. If, instead, an adult such as a surviving spouse holds the right and minor children are only beneficiaries of the recovery, the standard two year deadline generally governs and is not extended by the children’s minority. The answer therefore depends on who, under Georgia’s statutory order, holds the legal right to sue, and whether that person is a minor.
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.
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