When a person dies as a result of another party’s negligence or wrongful act in Georgia, the law recognizes two separate civil claims. They are often confused because both arise from the same death, but they are distinct causes of action with different purposes, different plaintiffs, and different categories of damages. The two claims are the wrongful death claim and the survival action.
The Wrongful Death Claim
The wrongful death claim is created by statute. It is found primarily in O.C.G.A. Sections 51-4-1 through 51-4-5. Its purpose is to compensate certain family members for the loss they suffer when a relative is killed by a wrongful act.
Georgia measures wrongful death damages by what the statutes and courts call the “full value of the life of the decedent.” This is a broad measure. It includes the economic value of the life, such as the income and services the decedent would likely have provided, and it also includes the intangible value of living itself, often described as the value of the experiences and relationships the decedent lost. Notably, Georgia courts have held that the full value of the life is calculated without deducting the decedent’s own personal living expenses.
The wrongful death claim does not belong to the estate. It belongs to a defined class of survivors. Under O.C.G.A. Section 51-4-2, the surviving spouse may bring the claim, and where there are children, the spouse holds the claim for the benefit of the spouse and the children jointly. If there is no surviving spouse or child, the right passes to the decedent’s parents. If there is no spouse, child, or parent, O.C.G.A. Section 51-4-5 allows the personal representative of the estate to bring the action for the benefit of the next of kin.
The Survival Action
The survival action rests on a different legal foundation. It is based on O.C.G.A. Section 9-2-41, which provides that a tort cause of action does not abate, meaning it does not end, when the injured person dies. Instead, the claim survives to the decedent’s personal representative.
The survival action does not compensate the family for losing their relative. Instead, it allows the estate to recover the losses the decedent personally suffered between the time of injury and the time of death. These commonly include the decedent’s conscious pain and suffering before death, medical expenses incurred treating the fatal injury, lost wages during that period, and funeral and burial expenses.
Because the survival claim is essentially the claim the decedent could have pursued while alive, it is brought by the personal representative of the estate, meaning the executor named in a will or the administrator appointed by a probate court when there is no will. Any recovery becomes an asset of the estate.
Key Differences Between the Two Claims
Several differences set the two claims apart.
First, the purpose differs. The wrongful death claim compensates for the loss of the life itself, viewed from the standpoint of what the decedent lost. The survival action compensates for the harm the decedent endured before dying.
Second, the plaintiff differs. The wrongful death claim is brought by the statutory survivors, usually the surviving spouse or children. The survival action is brought by the estate’s personal representative.
Third, the damages differ. Wrongful death damages center on the full value of the life. Survival damages center on pre-death pain and suffering, medical bills, lost wages, and burial costs. Georgia courts have held that the two claims are distinct and that damages may not be duplicated, so the same loss cannot be recovered twice.
Fourth, the destination of the money differs. Wrongful death proceeds pass directly to the statutory beneficiaries and are generally protected from the decedent’s creditors. Survival action proceeds enter the estate, where they are generally subject to creditor claims and are distributed under the will or under Georgia’s intestacy statutes.
How the Two Claims Work Together
The two claims are not mutually exclusive. A single death can give rise to both. When that happens, the claims are often pursued in the same lawsuit, sometimes by the same individual acting in two capacities, for example as a surviving spouse on the wrongful death claim and as the appointed administrator on the survival claim.
Even when joined in one lawsuit, the claims remain legally separate. A jury or court considering both will be asked to address the value of the decedent’s life under the wrongful death claim and, separately, the decedent’s pre-death suffering and expenses under the survival claim. The separation matters because it determines who is legally entitled to each portion of any recovery and whether creditors can reach the funds.
Statute of Limitations Considerations
Both claims are subject to time limits. A wrongful death claim in Georgia generally must be filed within two years of the date of death under O.C.G.A. Section 9-3-33. The deadline for a survival action depends on the underlying injury claim and the rules governing the estate, and Georgia law contains specific provisions that can affect timing while an estate is being administered. Because the deadlines are governed by statute and can turn on case-specific facts, the precise filing window is determined by the particular circumstances of each death.
Conclusion
The difference between a wrongful death claim and a survival action in Georgia comes down to whose loss is being compensated. The wrongful death claim addresses the loss of the decedent’s life and belongs to the statutory family members. The survival action addresses what the decedent personally endured before death and belongs to the estate. Both arise under Georgia statutes, both can stem from the same death, and Georgia law treats them as separate claims with separate damages, separate plaintiffs, and separate rules for distributing any recovery.
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.