When a person dies because of someone else’s negligent or intentional act, Georgia law allows certain family members to bring a civil lawsuit for the death. Georgia’s wrongful death law lives in Chapter 4 of Title 51 of the Official Code of Georgia Annotated. The rules that decide who may sue depend partly on the relationship between the deceased person and the survivor. The death of a minor child is governed by a different code section than the death of an adult spouse or parent, and the differences are worth understanding.
The Two Separate Statutes
Georgia separates wrongful death claims into two main provisions based on who died.
O.C.G.A. 51-4-2 governs the wrongful death of a spouse or a parent. Under this section, a surviving spouse, or if there is no surviving spouse the deceased person’s children, may recover for the death.
O.C.G.A. 19-7-1 governs the right to recover for the wrongful death of a child. This section is placed in Title 19, which covers domestic relations, rather than in the wrongful death chapter of Title 51. It addresses the situation where the person who died was a child and did not leave behind a spouse or children of their own.
Both sections allow recovery of the same core measure of damages, described in Georgia law as the full value of the life of the deceased. The difference lies in who holds the legal right to bring the claim.
Who May Sue When a Child Dies
Under O.C.G.A. 19-7-1, when a child dies and leaves no spouse or child, the right to recover belongs to the parents. The statute sets out a structured order:
If the parents are living together and are not divorced, the right to sue belongs to both parents jointly.
If one parent has died, the right belongs to the surviving parent.
If both parents are living but are divorced, separated, or living apart, the right belongs to both parents.
In the situation where parents are divorced, separated, or living apart, the statute addresses what happens if one parent refuses to participate in the lawsuit or cannot be located. In that case, the other parent may contract for legal representation on behalf of both parents and may proceed with the claim, with any recovery shared between the parents as the statute directs.
When parents are divorced, separated, or living apart, the judge divides any recovery between them. The statute directs the judge to fairly determine the percentage of the judgment awarded to each parent. In making that decision, the judge considers each parent’s relationship with the deceased child, including matters such as custody, control, and support, along with any other factors the court finds relevant.
Georgia courts have also recognized that a parent can lose the right to recover for a child’s death. Conduct that terminates parental power, such as abandoning the child or failing to provide necessary support, can cut off a parent’s share.
Who May Sue When an Adult Dies
Under O.C.G.A. 51-4-2, the wrongful death claim for an adult who was married follows a strict order of priority. The surviving spouse holds the exclusive right to bring the claim. If there is no surviving spouse, the right passes to the deceased person’s children. Georgia law provides that when a spouse and children both survive, the spouse brings the action but holds the recovery partly for the benefit of the children, and the spouse’s share cannot be less than one third of the total recovery. When only children survive, the recovery is divided equally among them.
If an adult dies leaving no spouse and no children, the right to recover for that adult’s death may rest with the parents under O.C.G.A. 19-7-1, because that section also addresses the death of a child in the sense of a son or daughter, regardless of the deceased person’s age, as long as no spouse or child survives.
The Key Differences
The first difference is the location and structure of the law. The death of a married adult with descendants is handled by O.C.G.A. 51-4-2, while the death of a son or daughter who left no spouse or children is handled by O.C.G.A. 19-7-1.
The second difference is the identity of the proper plaintiff. For a married adult, the surviving spouse stands first and holds the claim alone. For a child or for an unmarried adult son or daughter with no children, the parents stand as the proper parties, and the statute carefully addresses divorced, separated, or absent parents.
A third difference is the division of recovery. Under the spouse and parent statute, the law fixes the spouse’s minimum share and divides the remainder among children. Under the child statute, when parents are divorced or living apart, a judge allocates the recovery between the parents based on each parent’s relationship with the child.
A Separate Estate Claim
In addition to the wrongful death claim itself, Georgia recognizes a separate claim that belongs to the deceased person’s estate. That claim, often called the estate or survival claim, can include the deceased person’s medical expenses, funeral and burial costs, and conscious pain and suffering before death. The estate claim is brought by the administrator or executor of the estate and exists alongside the wrongful death claim, whether the deceased person was a child or an adult.
Conclusion
Georgia draws a clear line between the death of a married adult and the death of a child or unmarried son or daughter. The spouse and parent statute, O.C.G.A. 51-4-2, places the surviving spouse first. The child statute, O.C.G.A. 19-7-1, places the parents first and includes detailed rules for divorced, separated, or absent parents, including a judicial allocation of any recovery. Both statutes aim at the same goal, compensation measured by the full value of the life that was lost, but they reach that goal through different paths depending on who died and what family survived.
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.