In Georgia, the statute of limitations for a wrongful death claim generally begins to run from the date of death, not the date of the injury or event that caused it. This distinction matters because the injury and the death do not always occur on the same day. A person may be hurt in an accident or by negligent care and survive for weeks, months, or longer before passing away. When that happens, the wrongful death clock starts on the day the person dies.
The General Rule
A wrongful death action in Georgia is subject to a two-year statute of limitations under O.C.G.A. Section 9-3-33, the same statute that governs ordinary personal injury claims. A statute of limitations is a deadline. If a claim is not filed in court within the limitations period, the right to bring it is ordinarily lost.
For a wrongful death claim specifically, Georgia courts have treated the cause of action as one that comes into existence at the moment of death. The death itself is the event that creates the survivors’ right to sue. Because the claim cannot exist until the death occurs, the two-year period is measured from the date of death.
This is a meaningful difference from the deceased person’s own personal injury claim. If a person is injured and lives for a time before dying, that person had a separate personal injury claim during life, and the limitations period for that claim ran from the date of the injury. The wrongful death claim that belongs to the survivors is distinct, and its clock starts later, on the date of death.
Why the Two Dates Can Differ
The gap between injury and death is most visible in cases involving prolonged medical conditions. Consider a situation where a person is injured in a collision, undergoes treatment, and dies eight months later from complications. The injury occurred on one date, but the death occurred on another. For the wrongful death claim, the relevant starting point is the later date, the date of death.
The same pattern appears in medical negligence cases. A negligent act or omission by a health care provider might occur on one date, but the patient may not die until much later. The wrongful death limitations period still runs from the date of death rather than the date of the medical error.
The Estate’s Survival Claim Is Measured Differently
It is important to separate the wrongful death claim from a related claim that belongs to the deceased person’s estate. Georgia law allows the estate to bring a survival action for the losses the deceased person suffered between the injury and death, such as medical expenses, lost wages during that period, and conscious pain and suffering. That survival claim is the continuation of the deceased person’s own personal injury claim, and its limitations analysis traces back to the original injury rather than the death. As a result, a single fatal incident can produce two claims with two different limitations starting points: the wrongful death claim measured from death, and the survival claim tied to the underlying injury.
Circumstances That Can Affect the Calculation
While the date of death is the general starting point, several rules can change the practical deadline.
When a wrongful death arises from medical malpractice, Georgia law adds a five-year statute of repose under O.C.G.A. Section 9-3-71. A statute of repose is an absolute outer limit. It provides that no medical malpractice action may be brought more than five years after the date of the negligent act or omission, regardless of when the death occurs. If a death from a medical error happens more than five years after the error, the statute of repose can bar the claim even though fewer than two years have passed since the death.
When a related criminal prosecution is pending, O.C.G.A. Section 9-3-99 may toll, or pause, the running of the limitations period. The tolling can last until the criminal case concludes, subject to a cap of six additional years.
When the responsible party is a government entity, separate ante litem notice deadlines apply, and these are considerably shorter than two years. A formal notice generally must be presented within a set number of months before any lawsuit may proceed.
The limitations period may also be tolled while there is no legal representative for the deceased person’s estate, subject to a maximum tolling period set by statute.
Conclusion
For a wrongful death claim in Georgia, the two-year statute of limitations under O.C.G.A. Section 9-3-33 generally starts from the date of death rather than the date of injury, because the survivors’ right to sue does not arise until the death occurs. The deceased person’s own claims, by contrast, relate back to the original injury. Several rules, including the five-year medical malpractice statute of repose, criminal-prosecution tolling, government ante litem notice requirements, and tolling for an unrepresented estate, can shift the practical deadline. Because these rules interact in ways that depend on the specific facts, the actual deadline in any given situation is determined case by case.
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.
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