It is possible for a person accused of causing a wrongful death to die before the case against that person is concluded. The accident or event that caused one death may have injured the alleged wrongdoer as well, or the defendant may die later for an unrelated reason while the case is pending. Georgia law addresses this directly. A wrongful death claim does not simply end when the defendant dies. It survives and can be pursued against the defendant’s estate, subject to certain rules.
The Survival of Tort Actions in Georgia
The governing statute is O.C.G.A. section 9-2-41, which deals with the survival of tort actions. It provides that an action for a tort does not abate, meaning it does not terminate, by the death of either party when the wrongdoer received a benefit from the tort. More broadly, the statute provides that a cause of action for the recovery of damages for homicide, injury to the person, or injury to property does not abate by the death of either party. A wrongful death claim, which is a claim for damages connected to a homicide in the legal sense of a death caused by another, falls within the protection of this statute.
The statute further specifies that when the defendant dies, the cause of action survives against the defendant’s personal representative. The personal representative is the executor or administrator who is appointed to manage the deceased defendant’s estate.
The Claim Continues Against the Estate
The practical effect is that the death of the defendant does not extinguish a Georgia wrongful death claim. The claim continues, but the party who must answer for it changes. Instead of proceeding against the individual, the claim proceeds against the estate of the deceased defendant, through the personal representative of that estate.
When a defendant dies after a lawsuit has already been filed, Georgia procedure provides a mechanism to substitute the personal representative of the estate as the defendant in place of the deceased individual. When a potential defendant dies before any lawsuit is filed, the claim is brought against the estate’s personal representative from the outset. In either situation, this ordinarily requires that an estate be opened and a personal representative appointed, so that there is a proper party to be sued.
An Important Limitation on the Surviving Claim
The survival of the claim is not unlimited. Georgia law recognizes that a claim against a deceased defendant’s personal representative depends on the underlying claim having been valid against the defendant during life. If a plaintiff could not have maintained the action against the defendant while the defendant was alive, the action cannot be maintained against the defendant’s personal representative after death. The death of the defendant does not create a claim that did not otherwise exist, and it does not revive a claim that was already barred. It simply allows a claim that was valid against the living defendant to continue against the estate.
Punitive Damages and the Estate
O.C.G.A. section 9-2-41 also addresses punitive damages. The statute provides that punitive damages are not recoverable against the personal representative of a deceased tortfeasor. The reasoning behind this rule is that punitive damages are intended to punish and deter the wrongdoer, and that purpose is not served by extracting them from an estate that will pass to heirs rather than from the wrongdoer personally. As a result, a claim that survives against a deceased defendant’s estate is generally limited to compensatory damages.
This rule is most relevant to the estate or survival claim of the decedent who died, because a wrongful death claim under Georgia law is itself measured by the full value of the life of the decedent and is not a vehicle for punitive damages in the first place. The survival action belonging to the decedent’s estate can include punitive damages against a living defendant, but that component does not carry over against a deceased defendant’s estate.
Practical and Timing Considerations
When a defendant has died, the existence of an estate and the appointment of a personal representative become important. If no estate has been opened, there may be no party against whom the claim can proceed until that step is taken. The statute of limitations that applies to a wrongful death claim, generally two years from the date of death, continues to apply, and the death of the defendant does not by itself extend that deadline. The size of the deceased defendant’s estate and any insurance coverage that applies to the underlying event affect what can practically be recovered, in the same way these factors matter when a defendant is alive.
Summary
Under O.C.G.A. section 9-2-41, a Georgia wrongful death claim does not abate when the defendant dies before the case is resolved. The claim survives and may be pursued against the deceased defendant’s estate through its personal representative, whether the death occurs before or during the litigation. The surviving claim must have been valid against the defendant during life, because the defendant’s death neither creates nor revives a claim. Punitive damages are not recoverable against a deceased tortfeasor’s personal representative, so a surviving claim against an estate is generally limited to compensatory damages.
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.