A statute of limitations is a law that sets a deadline for filing a lawsuit. Once that deadline passes, the right to sue is generally lost, no matter how strong the underlying claim might have been. In Georgia, wrongful death claims are subject to a defined limitations period, but the rule has nuances. Certain events can pause the clock, the estate’s separate claim follows a different track, and special situations can change the calculation. This guide explains the general rule and the most important exceptions.
The General Two Year Rule
A wrongful death claim in Georgia must generally be filed within two years. Georgia applies the two year personal injury limitations period found in O.C.G.A. 9-3-33 to wrongful death actions. The clock ordinarily starts running on the date of the person’s death.
The two year period applies to the wrongful death claim itself, the claim brought by the surviving spouse or, in the order Georgia law sets out, the children or parents, seeking the full value of the life of the deceased person. If that claim is not filed in court within two years, it is generally barred.
The Separate Estate Claim
A death caused by another party’s wrongdoing can produce two distinct claims. The first is the wrongful death claim described above. The second is the estate claim, sometimes called the survival claim, which belongs to the deceased person’s estate. The estate claim can include the deceased person’s medical expenses, funeral and burial costs, and conscious pain and suffering experienced before death.
The estate claim has its own timing rules and does not always run on the same schedule as the wrongful death claim. The distinction becomes important when no personal representative of the estate has been appointed, a situation discussed below.
Tolling While the Estate Is Unrepresented
Georgia law recognizes that an estate sometimes has no administrator or executor in place. Until a personal representative is appointed, there may be no one with authority to bring the estate’s claim. Georgia law addresses this by allowing the limitations period for the estate’s claim to be paused, or tolled, for a period of up to five years while the estate remains unrepresented. After that period, the clock begins to run.
This five year tolling allowance is generally understood to apply to the estate’s claim. The wrongful death claim for the full value of the life of the deceased person, brought by the surviving family members, remains tied to the two year period and is not extended simply because no estate administrator has been appointed. The two tracks should not be confused with one another.
Pause During a Related Criminal Case
Georgia law also recognizes that a death may be the subject of a criminal prosecution against the responsible party. When the alleged wrongful conduct is also a crime, Georgia law can toll the civil limitations period while the criminal case is pending. This tolling is subject to its own statutory conditions and time limits. The general idea is that the civil clock can be paused while the related criminal matter proceeds, so that the criminal process does not consume the entire window for a civil filing.
Minors and the Limitations Period
Georgia law tolls limitations periods for individuals who are under the age of eighteen. Under O.C.G.A. 9-3-90, if the person who holds the right to sue is a minor, the limitations period can be extended, generally running from the time the minor reaches the age of majority.
The application of this rule to wrongful death cases depends on who holds the right to sue. If the proper plaintiff is an adult, such as a surviving parent or spouse, that adult is generally expected to file within the standard two year period even though minor children may benefit from the recovery. The minority tolling provision has its strongest effect when the minor is the person who actually holds the legal standing to bring the claim.
Claims Against Government Entities
When a death involves the conduct of a government employee, additional and shorter deadlines apply. Claims against the State of Georgia under the Georgia Tort Claims Act require a written ante litem notice within twelve months, separate from the lawsuit deadline. Claims against counties and cities carry their own ante litem notice requirements with their own time limits. These notice deadlines operate alongside, and independently of, the two year statute of limitations.
Why the Deadline Matters
The statute of limitations serves to bring finality and to ensure that claims are pursued while evidence and memories remain fresh. Because Georgia law contains both a general rule and several exceptions, the actual deadline in any given situation depends on the specific facts, including who died, who holds the right to sue, whether an estate has been opened, whether a criminal case is pending, and whether a government entity is involved.
Conclusion
The general statute of limitations for a wrongful death claim in Georgia is two years from the date of death, drawn from O.C.G.A. 9-3-33. The estate’s separate claim can be tolled for up to five years while no personal representative has been appointed. A related criminal prosecution can pause the civil clock under defined conditions, minority can toll the period when a minor holds the right to sue, and government claims add separate ante litem notice deadlines. The two year rule is the starting point, but the exceptions can meaningfully change the calculation in particular cases.
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.