When a person dies because of someone else’s wrongful conduct in Georgia, two distinct civil claims can arise from the same event: a wrongful death claim and a survival action. These are separate causes of action with different purposes, different plaintiffs, and different categories of damages. Georgia law allows both to be pursued at the same time. This guide explains how the two claims relate and why they are commonly brought together.
Two Separate Claims From One Death
Georgia recognizes that a single death can produce more than one legal injury. The wrongful death claim and the survival action address different harms.
The wrongful death claim is governed by O.C.G.A. Title 51, Chapter 4. It compensates for the “full value of the life” of the person who died, measured from the perspective of the deceased rather than the survivors. This includes both an economic component, such as lost lifetime earnings, and an intangible component, such as the loss of the experiences and relationships that make up a life.
The survival action is rooted in O.C.G.A. § 9-2-41, which provides that a tort cause of action does not abate, or end, simply because the injured person has died. Instead, the claim the deceased person could have brought survives and may be pursued by the estate. The survival action compensates for the losses the deceased personally sustained between the time of injury and the time of death. This typically includes the deceased’s medical expenses, lost wages during that period, and the conscious pain and suffering the deceased experienced before death.
Why the Two Claims Are Distinct
The two claims are distinct in several respects.
They compensate for different time periods and different harms. The survival action looks at what happened to the deceased before death. The wrongful death claim looks at the value of the life that was lost.
They have different plaintiffs. The wrongful death claim is brought by the statutory beneficiaries identified in O.C.G.A. § 51-4-2 and related sections, with a hierarchy that places the surviving spouse first, then the children, then the parents, and then, if none of those exist, the estate acting for the next of kin. The survival action is brought by the personal representative of the estate, meaning the executor or administrator.
They distribute money differently. Proceeds of a wrongful death claim generally pass to the statutory beneficiaries and are not treated as assets of the estate, which means they are generally not reachable by the estate’s creditors. Proceeds of a survival action belong to the estate and pass through it, which can make them subject to the claims of the estate’s creditors and to distribution under the will or the laws of intestacy.
Filing Both Claims at the Same Time
Georgia law permits the wrongful death claim and the survival action to be brought together. In practice, both are frequently asserted in the same lawsuit, often in a single complaint with separate counts. Pursuing them together is efficient because they arise from the same underlying facts about how the death occurred and who was responsible.
The fact that one person may serve in two capacities does not prevent both claims from proceeding. For example, a surviving spouse may be both the wrongful death beneficiary and the personal representative of the estate. In that situation, the same individual can bring the wrongful death claim in a personal capacity and the survival action in a representative capacity. Where different people hold these roles, each pursues the claim that belongs to that role.
The Rule Against Double Recovery
Although both claims can be filed together, Georgia law does not permit the same loss to be compensated twice. The categories of damages are kept separate so that the two claims do not overlap.
The survival action recovers the deceased’s pre-death medical bills, pre-death lost earnings, and pre-death pain and suffering. The wrongful death claim recovers the full value of the life, which is measured going forward. Because each claim is directed at a different category of loss, a plaintiff who proves both can recover under both without receiving a duplicate payment for the same item of damage. Courts and juries are expected to keep these categories distinct.
Practical Differences That Affect Both Claims
Several issues commonly arise when both claims are pursued.
The survival action requires that an estate be opened and a personal representative appointed, because the estate is the proper party. The wrongful death claim does not require an estate to exist, since it can be brought directly by the statutory beneficiary.
The two claims may be subject to deadlines that are calculated differently. Georgia generally applies a two-year statute of limitations to wrongful death claims under O.C.G.A. § 9-3-33. Survival actions are also subject to limitation periods, and the calculation can be affected by factors such as the timing of the appointment of a personal representative. The interaction of these deadlines can be nuanced and fact-specific.
Where the defendant is a government entity, additional pre-suit notice requirements may apply to one or both claims, and those requirements have their own deadlines.
Conclusion
In Georgia, a wrongful death claim and a survival action can be filed simultaneously, and they often are, frequently within the same lawsuit. They are separate causes of action: the wrongful death claim recovers the full value of the lost life for the statutory beneficiaries, while the survival action recovers the deceased’s own pre-death losses for the estate. Filing both together is permitted, but Georgia law prevents the same loss from being compensated under both claims.
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.