Georgia law places two very different kinds of time limits on lawsuits arising from a death. One is a statute of limitations, and the other is a statute of repose. They are sometimes confused, but they operate on separate principles and can interact in ways that affect whether a wrongful death claim can proceed at all. This guide explains how a statute of repose interacts with the two-year deadline for wrongful death claims in Georgia.
Statute of Limitations Versus Statute of Repose
A statute of limitations sets a deadline measured from the date a claim accrues, meaning the date the right to sue arises. For wrongful death, that date is generally the date of death. The limitations clock does not begin until the injury or death occurs, and the clock can sometimes be paused, or tolled, under certain circumstances.
A statute of repose works differently. It sets an outer deadline measured from a fixed event that has nothing to do with when an injury occurs. The repose period can expire before any injury ever happens. Georgia courts have repeatedly described a statute of repose as an absolute barrier that extinguishes the right of action itself, not merely the remedy. Once a statute of repose runs, there is generally no claim left to bring, and the usual tolling rules that can extend a statute of limitations do not revive a claim barred by repose.
The Two-Year Wrongful Death Deadline
The wrongful death statute of limitations in Georgia is generally two years. This deadline draws on O.C.G.A. Section 9-3-33, the statute governing injuries to the person. The two-year period generally runs from the date of the decedent’s death, because the wrongful death claim does not accrue until death occurs.
Georgia recognizes certain circumstances that can pause or extend this two-year period. For example, the period may be tolled while an estate has no representative for a limited time, and the pendency of a related criminal prosecution can affect the running of the period in some situations. These tolling rules apply to the statute of limitations.
Georgia’s Statutes of Repose
Georgia has more than one statute of repose. The question of a “five-year” repose period most often arises in two contexts.
In medical malpractice cases, O.C.G.A. Section 9-3-71 sets a general two-year limitations period for the act or omission, and it also contains a five-year statute of repose. Under that provision, in general no action for medical malpractice may be brought more than five years after the date of the negligent act or omission, regardless of when the injury is discovered.
In construction and improvements to real property, O.C.G.A. Section 9-3-51 sets an eight-year statute of repose for claims arising out of the design, planning, supervision, or construction of an improvement to real property.
In product liability, O.C.G.A. Section 51-1-11 sets a ten-year statute of repose that generally runs from the date a product was first sold as new for use or consumption.
The exact length of the applicable repose period therefore depends on the type of case. The medical malpractice repose period is five years, while construction and product liability use different periods.
How the Repose Period Can Cut Off a Wrongful Death Claim
The interaction becomes important because a statute of repose can bar a wrongful death claim even though the two-year limitations period has not expired.
Consider how this can happen in a medical malpractice context. Suppose a negligent act or omission occurred more than five years before a death. The wrongful death claim does not accrue until death, so the two-year limitations clock would not begin until that later date. But the five-year medical malpractice statute of repose runs from the date of the negligent act, not the date of death. If more than five years passed between the negligent act and the filing of suit, the repose statute may bar the claim, regardless of how recently the death occurred and regardless of the two-year limitations period.
The same structural relationship applies to the longer repose periods. A product liability wrongful death claim can be barred by the ten-year product liability statute of repose if the product was first sold more than ten years before suit, even though the death occurred recently and the two-year limitations period for the wrongful death claim has not run.
In short, satisfying the two-year wrongful death deadline does not guarantee that a claim survives. The repose period sets a separate outer boundary tied to a different starting event.
When the Two Deadlines Point in the Same Direction
In many cases the two-year limitations period is the operative deadline because the wrongful conduct, the injury, and the death all occur close together in time. When the negligent act and the death are not separated by years, the repose period will not have expired, and the two-year limitations clock controls.
The repose period becomes the critical issue mainly when there is a long gap between the wrongful act and the resulting death. That gap is most common in cases involving latent product defects, long-developing medical conditions, or harm that surfaces years after construction.
Important Caveats
Georgia law on these deadlines contains exceptions and refinements. Statutes of repose can have their own statutory exceptions, and courts have addressed how repose interacts with concepts like fraud and foreign objects left in the body. The starting date of a repose period can itself be contested, as Georgia courts have addressed when a product is considered first sold and when an improvement to real property is considered substantially complete.
Because the applicable repose period, its starting date, and any exceptions all depend on the specific type of claim and the specific facts, the precise deadline in any given situation is determined by those facts. The general principle, however, holds across contexts. A statute of repose and the two-year wrongful death statute of limitations are separate deadlines, and a claim must satisfy both. The repose period can extinguish a wrongful death claim before the two-year limitations period would otherwise apply.
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.