Georgia wrongful death law gives certain family members the right to bring a claim when a relative dies because of another party’s wrongful conduct. A natural question is whether a child whose parents were not married, often described as a child born out of wedlock, has the same rights as a child born to married parents. Under Georgia law, the answer is that the legal relationship of parent and child, once established, controls the right to bring a claim, not the marital status of the parents.
This guide explains how Georgia wrongful death law treats children born out of wedlock.
The Statutory Framework
The Georgia Wrongful Death Act, found in O.C.G.A. Sections 51-4-1 through 51-4-5, identifies who may bring a wrongful death claim. Under O.C.G.A. Section 51-4-2, when a person dies, the surviving spouse may bring the claim, and if there is no surviving spouse, the decedent’s child or children may do so.
The statute itself addresses children born out of wedlock. It contains language providing that a recovery for wrongful death is not barred because a child was born out of wedlock, so long as the legal parent-child relationship is recognized. In short, Georgia law does not treat a child as disqualified from wrongful death rights simply because the child’s parents were never married to each other.
The Key Issue Is Legal Parentage
Because marital status is not the dividing line, the central question becomes whether a legal parent-child relationship exists between the decedent and the child. When that relationship is legally established, the child is treated as a child of the decedent for wrongful death purposes.
For a child born out of wedlock, the relationship with the mother is ordinarily clear, and a child born out of wedlock is generally recognized as the child of the mother for these purposes. The relationship with the father is the area that more often requires proof, because the law of paternity governs whether the father-child relationship is legally recognized.
Establishing the Father-Child Relationship
Georgia law recognizes several ways a father-child relationship can be established for a child born out of wedlock. These can include a voluntary acknowledgment of paternity, a court order or judicial determination of paternity, a legal legitimation proceeding, or genetic testing that establishes biological parentage. Georgia statutes outside the wrongful death chapter, including provisions in Title 19 governing legitimation and paternity, address how these relationships are recognized.
When the father-child relationship has been legally established before the relevant death, a child born out of wedlock generally stands in the same position as any other child for wrongful death purposes. When parentage has not been established, the recognition of the relationship may need to be addressed as part of the legal process. Georgia courts examine the available evidence and the governing statutes to determine whether the relationship is legally recognized.
A Child’s Right to Recover for a Parent’s Death
When a parent of a child born out of wedlock dies because of another party’s wrongful conduct, and the legal parent-child relationship is recognized, the child may participate in a wrongful death claim for that parent on the same footing as other children of the decedent. If the decedent left a surviving spouse, that spouse brings the claim for the benefit of the spouse and all of the decedent’s children, and the proceeds are divided among the spouse and children under the distribution rules of O.C.G.A. Section 51-4-2. If there is no surviving spouse, the children, including a recognized child born out of wedlock, may bring the claim and share in the recovery.
A Parent’s Right to Recover for a Child’s Death
The principle works in both directions. Georgia law also allows a parent to recover for the wrongful death of a child in certain circumstances. The recognition of the parent-child relationship matters here as well. A parent of a child born out of wedlock may have wrongful death rights regarding that child when the legal parent-child relationship is established. Georgia statutes addressing a parent’s right to recover for the death of a child set out the conditions that apply, and the legal status of the relationship, rather than the parents’ marital history, is the operative consideration.
Distribution Among Children
When a recognized child born out of wedlock is among the decedent’s children, that child shares in the wrongful death recovery on equal terms with the decedent’s other children. Georgia law divides the recovery share and share alike among the surviving spouse and children, with descendants of a deceased child taking that child’s share by representation. A child born out of wedlock who is legally recognized as a child of the decedent is counted as a child for this purpose.
Summary
Children born out of wedlock can file or participate in a wrongful death claim in Georgia. The Georgia Wrongful Death Act does not bar recovery based on the parents’ marital status. The decisive question is whether a legal parent-child relationship exists. For a child born out of wedlock, the relationship with the mother is generally recognized, while the father-child relationship may need to be established through acknowledgment, legitimation, a court order, or genetic proof of paternity. Once the legal relationship is recognized, the child stands on equal footing with other children of the decedent for wrongful death rights and for the distribution of any recovery.
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.