When a person is injured by wrongful conduct and later dies, Georgia law allows the legal claim the injured person had to continue after death. This continuing claim is called a survival action. It is distinct from a wrongful death claim, and it is brought by a different party. This guide explains who has the right to file a survival action in Georgia and how that right is established.
What a Survival Action Is
At common law, many personal injury claims ended when the injured person died. Georgia changed that result by statute. O.C.G.A. § 9-2-41 provides that a tort cause of action does not abate, meaning it does not end, because of the death of the person who held it. Instead, the claim survives and may be pursued after death.
A survival action recovers the losses the deceased person personally suffered as a result of the injury during the period between the injury and death. This typically includes the deceased’s medical expenses, lost earnings during that period, and the conscious pain and suffering the deceased experienced before death. The survival action is, in essence, the claim the deceased could have brought if still alive, now carried forward.
The Estate, Not the Family, Holds the Claim
The right to file a survival action belongs to the deceased person’s estate. The proper party to bring the action is the personal representative of the estate. A personal representative is either an executor, named in a valid will and confirmed by the probate court, or an administrator, appointed by the probate court when there is no will or no named executor available.
This is a key distinction between a survival action and a wrongful death claim. The wrongful death claim is brought by statutory beneficiaries identified in O.C.G.A. § 51-4-2 and related sections, following a hierarchy of surviving spouse, then children, then parents. The survival action does not follow that hierarchy. It belongs to the estate, and only the personal representative of the estate can bring it.
A family member cannot file a survival action simply because of the family relationship. A surviving spouse, child, or parent who wishes to pursue the survival action must first be appointed as the personal representative of the estate, or the action must be brought by whoever else holds that appointment.
Opening an Estate and Appointing a Representative
Because the survival action requires a personal representative, an estate generally must be opened in the probate court of the county where the deceased lived. The probate court oversees the appointment of the executor or administrator.
If the deceased left a valid will, the will usually names an executor, and the probate court confirms that person. If there is no will, or if the named executor cannot serve, the probate court appoints an administrator. Georgia law sets out an order of preference for who may be appointed as administrator, generally favoring the surviving spouse and then other heirs, though the court considers the circumstances. The person appointed then has the legal authority, in a representative capacity, to bring the survival action on behalf of the estate.
It is the appointment that confers the right to file. A person who has not been appointed by the probate court does not have standing to bring the survival action, even if that person is the closest relative.
How Survival Action Proceeds Are Handled
Because the survival action belongs to the estate, any recovery becomes an asset of the estate. This has consequences that differ from a wrongful death recovery.
Funds recovered through a survival action pass into the estate and are then distributed according to the deceased’s will, or, if there is no will, according to Georgia’s laws of intestate succession. As an asset of the estate, a survival action recovery can also be subject to the valid claims of the estate’s creditors before distribution to the heirs.
By contrast, a wrongful death recovery generally passes directly to the statutory beneficiaries and is generally not treated as an estate asset reachable by the estate’s creditors. This difference in how proceeds are handled is one reason the two claims are kept separate even when they arise from the same death.
Relationship to the Wrongful Death Claim
A single death can give rise to both a survival action and a wrongful death claim, and Georgia law allows both to be pursued, often in the same lawsuit. The personal representative brings the survival action for the estate, while the statutory beneficiary brings the wrongful death claim. In some cases the same individual occupies both roles, for example a surviving spouse who is also appointed as the personal representative. In that situation, the individual brings the wrongful death claim in a personal capacity and the survival action in a representative capacity. The two claims recover different categories of loss, and Georgia law does not allow the same loss to be compensated twice.
Deadlines and Other Considerations
A survival action is subject to a statute of limitations. Because the survival action is the deceased’s own claim carried forward, the limitation period is generally connected to the underlying personal injury claim, and the timing can be affected by the date of injury, the date of death, and the appointment of a personal representative. Georgia law in this area can be nuanced, and certain circumstances may affect how the deadline is calculated.
If the claim is against a government entity, additional pre-suit notice requirements may apply.
Conclusion
In Georgia, the right to file a survival action belongs to the estate of the deceased and is exercised by the personal representative, meaning the executor named in a will or the administrator appointed by the probate court. It is not held by family members in their individual capacities and does not follow the wrongful death hierarchy of spouse, children, and parents. A relative who wishes to pursue a survival action must first obtain appointment as the personal representative. Any recovery becomes an asset of the estate and is distributed under the will or the laws of intestate succession.
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.