Losing a loved one in a motorcycle accident is devastating. But when that loss came as the result of someone else’s reckless or negligent actions, it adds another layer of grief. A wrongful death suit can’t bring back your loved one or erase the pain of loss, but it may help hold the responsible party accountable while offering your family support as they grieve.
However, many people don’t realize that not all family members are permitted to pursue wrongful death cases. So you might be wondering: who can sue for wrongful death in Georgia? Let’s take a closer look.
Who Can Sue for Wrongful Death in Alpharetta?
When someone dies unexpectedly, their loss touches countless people: family members, friends, colleagues, and more. But who can file a wrongful death claim?
Each state sets its own laws when it comes to wrongful death legal rights. If it weren’t for these laws, courts would have to deal with multiple lawsuits filed over the same incident. Eligibility rules for wrongful death cases can seem restrictive, but they exist to help make sure surviving family members can efficiently access the support they need.
Primary Eligibility: Immediate Family Members First
If you’re wondering who can sue for wrongful death, Georgia law (and specifically O.C.G.A. 51-4-2) clarifies who gets the opportunity to do so. O.C.G.A. 51-4-2 priority of claimant rules are designed to give the decedent’s closest family members the right to file:
- 1st Priority: Surviving spouse (if the decedent was legally married at the time of death)
- 2nd Priority: All children
- 3rd Priority: Parents (either one parent or both)
- 4th Priority: Personal representative or estate executor
Importantly, if the decedent and their spouse were separated at the time of death, the spouse still gets first priority for filing a wrongful death claim. However, if they divorced before death, the ex-spouse has no legal standing to file a claim.
It’s also critical to note that if the personal representative or estate executor files a wrongful death claim, they aren’t filing it on behalf of the decedent’s estate. Instead, they’re filing on behalf of “next of kin,” or other family members. That might include siblings, aunts and uncles, grandchildren, and other blood relatives.
Priority Rules: Who Has the Legal Right to File First?
Wrongful death lawsuit eligibility rules in Georgia can be complex. Many people see the eligibility rules listed above and assume that if someone on a higher tier (like the surviving spouse) declines to file a wrongful death claim, someone on a lower tier (like a surviving parent) will have the option to do so.
Unfortunately, this isn’t the case. Georgia has a “strict priority” system, which means that only one representative from the highest available tier can pursue wrongful death damages. If the person on the highest tier won’t file, someone on a lower tier generally can’t step in to file instead.
For example, imagine someone is killed in an accident and leaves behind a spouse and adult children. If the surviving spouse doesn’t choose to file a wrongful death claim, the decedent’s children still aren’t eligible to do so.
However, if the decedent was not married at the time of death (and there is no surviving spouse), their children are the highest available priority tier. In this case, one of the children could serve as the group’s representative and file a wrongful death suit.
When the Estate Files: Role of the Personal Representative
When a family member files a wrongful death lawsuit after a victim’s death, they’re trying to recover compensation for the loss they’ve suffered. Wrongful death lawsuits don’t allow you to recover compensation for the pain and suffering your loved one experienced before death.
However, a separate, related legal claim called a “survival action” can. A survival action aims to recover compensation for the following:
- Pain and suffering experienced before death
- Medical bills incurred before death
- Funeral and burial expenses
Georgia wrongful death survival actions work a lot like personal injury cases. However, family members may not file survival actions. Only the personal representative of the deceased person’s estate may do so.
Survival action and wrongful death claim requirements are different, but together, both legal actions can help hold the responsible party (or parties) accountable. Often, wrongful death attorneys can help surviving family members and estate representatives file both claims at the same time. Doing so provides maximal support for your family: you can cover medical, funeral, and burial costs while also making up for lost financial support.
Special Situations That Affect Eligibility
The eligibility rules mentioned above cover most situations where surviving family members are trying to decide who should file a lawsuit. However, there are a few exceptions and differences in wrongful death eligibility to keep in mind:
Cases Involving Children
Typically, if the decedent’s surviving spouse has children with the decedent, the spouse must share any compensation obtained through a wrongful death lawsuit with the children. This rule applies even if those children are adults, and they don’t have to have been financially dependent on the deceased to recover compensation.
Under Georgia law, the surviving spouse must receive at least one-third of the proceeds of the wrongful death lawsuit. The rest is divided equally among the children.
For example, imagine a deceased person leaves behind a spouse and two children. The spouse files a wrongful death lawsuit and recovers $300,000 in compensation. One-third of the amount ($100,000) would go to the spouse, and the remaining $200,000 would be split between the two children.
Cases Involving Minor Children
If the decedent has no surviving spouse but leaves behind minor children, those children may need a court-appointed guardian or representative to ensure that their best interests are prioritized.
Usually, if a high-priority relative refuses to file a wrongful death claim, lower-priority relatives are not allowed to file one. However, in limited instances, representatives for minor children may petition the court to allow the children to file a lawsuit without the help of the spouse. This is usually only done if the spouse’s refusal to file a wrongful death action goes against the best interests of the children.
Stepchildren and Foster Children
In some cases, families may have some confusion over who qualifies as a child of the decedent. Georgia grants legally adopted children the same standing as biological children of the decedent. However, a stepchild who hasn’t been legally adopted doesn’t have the right to pursue compensation through a wrongful death suit.
In a similar vein, a child whom the decedent was fostering (but had not adopted) may not pursue a wrongful death action, and they aren’t entitled to any wrongful death compensation collected by a surviving spouse.
Notably, if the decedent has a biological child who was born out of wedlock, that child only has the right to file a wrongful death lawsuit if paternity has officially been established. There are several ways to do this. If the father’s name appears on the birth certificate or the father has otherwise legally acknowledged paternity, that’s adequate. A court-ordered paternity test or DNA test can also confirm parentage.
Criminal Cases
Generally, surviving family members have two years from the date of death to file a wrongful death lawsuit. However, if there is a criminal case against the person who caused the death, they may have more time to file. The wrongful death statute of limitations in a Georgia criminal case may be paused for up to six years while the criminal case is finalized.
If the criminal case is successful and the at-fault party is convicted of a crime, that may increase your chances of a successful wrongful death claim. However, even if the at-fault party is not convicted, filing a claim might still be wise. The standard of proof is higher in criminal court than it is in civil court, so it’s possible for the at-fault party to be acquitted in criminal court but found liable in civil court.
Keep in mind that you should never assume that the statute of limitations has been paused without talking to a wrongful death attorney first. If you’re mistaken, you could permanently lose your right to file a wrongful death lawsuit.
Unmarried Partners
In some states, the long-term partner of the deceased may file a wrongful death lawsuit, especially if they can prove they were at least somewhat financially dependent on them. Georgia is not one of these states. Unmarried domestic partners, fiancés, and cohabitating partners aren’t granted the right to file wrongful death cases under Georgia law.
Practical Considerations Before Filing a Claim
Filing a wrongful death lawsuit is a major undertaking. Most wrongful death law firms work on contingency, meaning you’ll only owe legal fees if you win. Financing the case may not be a concern, but there are some other considerations to weigh before you seek compensation through a lawsuit.
You Have Limited Time to File
In Georgia, the wrongful death statute of limitations is generally two years from the date of the decedent’s death. You don’t have to contact a wrongful death lawyer immediately after a fatal car accident or motorcycle accident, but it’s a good idea to get in touch as soon as possible. It takes time to prepare a strong case, so you should connect with a lawyer sooner rather than later.
If you intend to file a wrongful death action against a government entity, you have even less time to act. Depending on whether you’re filing a claim against a city, state, or county government agency, you generally have to send a notice 6-12 months from the date of the decedent’s death. Your personal injury attorney can help you determine the deadline that applies to your case.
You (or Your Lawyer) Must Be Able to Prove Negligence
Some wrongful death lawsuits are filed after one person intentionally kills another. However, the majority of these cases arise because one person caused another’s death through negligence. To effectively prove negligence in court, your lawyer must be able to show evidence of these key legal elements:
- The defendant owed a duty of care to the deceased
- The defendant breached that duty in some way
- The breach of duty directly led to the death
- The death resulted in damages (or measurable losses)
Remember that, unlike a survival action, a wrongful death lawsuit is designed to compensate spouses, children, or other family members for their own losses. Those losses might include lost financial support, emotional anguish, and loss of consortium.
Wrongful Death Cases Aren’t Meant to Cover Medical Costs or Funeral Expenses
If you get hurt in a motorcycle accident and file a personal injury lawsuit, some of the financial compensation you receive is meant to cover your medical expenses. However, because a wrongful death lawsuit is designed to compensate the family (and not the deceased person’s estate), you generally won’t recover funeral and burial costs.
If recovering payment for medical expenses and funeral costs is your main concern, you might want to make filing a survival action a priority. Keep in mind that a survival action can only be filed by the deceased person’s personal representative or estate executor.
Wrongful Death Cases Are Meant to Compensate You for the “Full Value of Life”
“Full value of life” in Georgia wrongful death cases is an important concept to understand. These cases are meant to compensate family members for their own losses, so courts try to find a monetary “full value of life” for your deceased loved one.
The “full value of life” includes compensation for both economic losses and intangible losses. For example, you and your family might be compensated for your loved one’s lost future wages and other financial support. You also might receive compensation for the loss of your relationship, emotional pain, and other losses you can’t quantify.
Have You Lost a Loved One Due to Someone’s Negligence?
If someone’s careless or intentional actions led to the death of your loved one, you should seek the help of an experienced wrongful death attorney right away. The team at Bulldog Law Firm is committed to fighting for the rights of injured people and those who have lost loved ones due to injury.
If you’re considering a wrongful death lawsuit or just want to learn more about your options, get in touch with us today to book your free consultation.
