Georgia’s wrongful death statute creates a specific order of who may bring a claim when a person dies because of wrongful conduct. Grandparents are not named in that order. This raises a recurring question: if a person dies and both of that person’s parents are also deceased, can the grandparents bring a wrongful death lawsuit? The answer depends on the structure of Georgia’s statute and on whether the deceased left a spouse, children, or an estate. This guide explains how the law addresses that situation.
The Statutory Hierarchy
Georgia’s wrongful death statute, found in O.C.G.A. Title 51, Chapter 4, sets a hierarchy of who is entitled to bring a wrongful death claim. The hierarchy generally runs as follows.
The surviving spouse holds the first right to bring the claim. If the deceased was married at the time of death, the spouse is the proper party, and Georgia law also provides that any minor children share in the recovery, with the spouse’s portion subject to a statutory minimum.
If there is no surviving spouse, the right passes to the children of the deceased.
If there is no surviving spouse and no children, the right passes to the parents of the deceased. Georgia statutes address how the parents bring the claim, including situations where the parents are divorced, separated, or where one parent has died.
If the deceased left no surviving spouse, no children, and no living parent, the right to recover passes to the personal representative of the estate, who brings the claim under O.C.G.A. § 51-4-5 for the benefit of the next of kin.
Grandparents do not appear anywhere in this hierarchy as direct claimants. Georgia courts have recognized that relatives outside the listed categories, including grandparents, siblings, aunts, uncles, and cousins, generally cannot file a wrongful death claim in their own names.
What Happens When Both Parents Are Deceased
The question of grandparents most often arises when the deceased was an unmarried adult or child with no children of their own, and both parents have died. In that situation, the direct claimants in the hierarchy, that is, the spouse, the children, and the parents, do not exist.
When that occurs, the right to pursue the wrongful death recovery does not simply disappear, and it does not automatically vest in the grandparents as individuals. Instead, it passes to the personal representative of the deceased person’s estate. Under O.C.G.A. § 51-4-5, when there is no person entitled to bring a wrongful death action under the earlier sections, the administrator or executor of the estate may bring the action. Any recovery obtained by the personal representative in that situation is held for the benefit of the next of kin.
This is the key distinction. Grandparents cannot file the lawsuit themselves as plaintiffs simply because they are grandparents. The proper plaintiff is the estate, acting through its personal representative.
How Grandparents May Still Be Connected to the Claim
Although grandparents are not direct claimants, they are not necessarily excluded from the process or from any eventual recovery. Two points are relevant.
First, the personal representative is the person who files. Georgia law allows a qualified person to be appointed as the administrator of an estate. A grandparent may, depending on the circumstances and on the rules of the probate court, seek appointment as the administrator of the deceased’s estate. In that role, the grandparent would be acting in a representative capacity on behalf of the estate, not suing as a grandparent in a personal capacity. Appointment as administrator is governed by Georgia’s probate rules and is a separate process from the wrongful death claim itself.
Second, when the personal representative recovers in a case where no spouse, child, or parent exists, the proceeds are held for the next of kin. Georgia’s rules of inheritance, found in the laws of descent and distribution, determine who the next of kin are. Grandparents can be next of kin under those rules when closer relatives do not exist. As a result, a grandparent may be a beneficiary of the recovery even though the grandparent is not the named plaintiff.
A separate claim, the survival action, may also be available. That claim belongs to the estate and is brought by the personal representative under O.C.G.A. § 9-2-41 to recover the losses the deceased sustained before death. It follows the estate, not the wrongful death hierarchy.
Deadlines and Procedural Considerations
Georgia generally applies a two-year statute of limitations to wrongful death claims under O.C.G.A. § 9-3-33, measured from the date of death. Where the estate must bring the claim, the appointment of a personal representative becomes a necessary step, and the timing of that appointment can interact with the limitation period. Georgia law in this area can be nuanced, and certain circumstances may affect how deadlines are calculated.
If the death involved a government entity, additional pre-suit notice requirements may apply.
Conclusion
In Georgia, grandparents cannot bring a wrongful death lawsuit in their own names simply because both parents of the deceased have died. The wrongful death statute lists a fixed hierarchy of spouse, children, and parents, and grandparents are not part of it. When none of those parties exist, the right to pursue the claim passes to the personal representative of the deceased’s estate, who acts for the benefit of the next of kin. A grandparent may participate by seeking appointment as the estate’s administrator and may share in the recovery as next of kin under Georgia’s inheritance rules, but the legal claim itself belongs to the estate rather than to the grandparent personally.
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.