Who Can File A Wrongful Death Lawsuit

One of the first questions in any wrongful death case is who is legally authorized to file the lawsuit and serve as the plaintiff in the case.  Let’s look at Georgia law determines who has the legal right to file a wrongful death case.

Who Can File A Lawsuit For The Wrongful Death Of An Adult?

If the deceased was married, Georgia law OCGA § 51-4-2(a) gives the surviving husband or wife the legal right to file a wrongful death case.

If the deceased was not married or his or her spouse has already passed away, Georgia law OCGA § 51-4-2(a) gives the children of the deceased the legal right to file a wrongful death lawsuit.  The children all share equally in the right to file the case but there can only be one wrongful death case filed.  For example, if the deceased had three children each child has an equal right to file a wrongful death lawsuit but they cannot file three separate lawsuits.  Typically, the children would file one lawsuit with all of them as plaintiffs or the children would choose one person to serve as the plaintiff and that person would prosecute the case on their behalf.

Georgia law OCGA § 51-4-2(d) provides how a financial recovery in a wrongful death lawsuit is divided.  The surviving spouse and any children each take an equal share of the recovery with the surviving spouse entitled to at least one-third of the recovery.  For example, if the deceased is survived by his wife and child, each would be entitled to half of the recovery.  If the deceased is survived by her husband and three children, the husband would be entitled to one-third and the children would equally split the remaining portion.

Who Can File A Lawsuit For The Wrongful Death Of A Child?

In cases involving the wrongful death of a child,Georgia law OCGA § 51-4-1 andOCGA § 19-7-1 give the deceased’s parents the legal right to file a wrongful death case.  Both parents have an equal right to file the lawsuit, whether they are married, divorced, separated, living apart or have never been married.

Once a wrongful death case has been resolved, the parents must decide how to divide the financial recovery.  If the parents are married, each parent receives half.  However, if the parents are divorced, separated, living apart or have never been married, the judge may hold a hearing to determine how to fairly divide any financial recovery.  The judge can hear evidence of each parent’s relationship with the child and determine the percentage of the recovery that each parent should receive.  The purpose of this law is to prevent a parent who has little or no relationship with their child from receiving a financial recovery from their child’s death.  Parents who share custody of their children would typically receive equal amounts; parents who have little involvement in their child’s lives would receive little or nothing.

What If The Deceased Does Not Have A Spouse, Child Or Parent To File A Wrongful Death Lawsuit?

If the deceased does not have a spouse, children or parents, Georgia law OCGA§ 51-4-5(a) provides that the administrator or executor of the decedent may file a wrongful death lawsuit.