When a loved one dies because of the negligence of another party due to drunk driving, malpractice, neglect or abuse, the sale of contaminated food, improper service of alcohol, faulty construction, or unlawful criminal acts such as intentional homicide, specific parties may file a lawsuit to recover damages. In fact, two potential lawsuits are possible in Georgia: a survival action (also known as an estate claim) and a Georgia wrongful death claim.
The survival action allows the estate of the deceased person to bring a claim for the medical expenses, funeral expenses, and pre-death pain and suffering. The wrongful death lawsuit allows next of kin to bring a claim for the value of the life that was taken from the deceased person.
Wrongful Death Claim Eligibility
Only certain people are eligible to bring a wrongful death claim to court. If the deceased person was married at the time of death, the surviving spouse must initiate the wrongful death claim. If the deceased person and the surviving spouse had children together, the surviving spouse will also represent the interests of the children. The surviving spouse receives no less than one-third of the award. If there is one child, the spouse and the child each receives half of the award. If there is a spouse and two children, each of them receives one-third of the award. If there are more than two children, the surviving spouse receives one-third, and the children share the remaining two-thirds of the award equally. If there is no surviving spouse, the children split the award evenly. If the children are under legal age, they will need a guardian to initiate the suit.
If the deceased person was not married and had no children, the surviving parents must initiate the claim. If there are no surviving parents, the personal representative of the estate can initiate the claim with the understanding that recoverable damages will be provided to the next of kin.
Siblings, aunts, uncles, and grandparents have no legal right to initiate a wrongful death claim.
Burden of Proof
It’s a common misconception that a wrongful death case involves establishing guilt beyond a reasonable doubt. Although wrongful death can involve conduct that constitutes murder as defined under Georgia’s criminal statutes, a wrongful death suit must only establish that it’s more likely than not that the defendant is responsible. This lower burden of proof is why defendants who are found not guilty of murder in a criminal court can still be found liable in a wrongful death claim.
A wrongful death lawsuit is a type of personal injury claim, even though the injured person is no longer able to initiate the action himself. In a Georgia wrongful death lawsuit, monetary damages are meant to cover the full value of the life of the deceased. It includes not only an award for the income the deceased person would have earned over a lifetime, but also an award for intangible losses such as loss of the enjoyment of life and loss of important relationships.
It’s important to note that lack of employment at the time of death does not necessarily prevent the recovery of economic damages. Children or college students may not have been working at the time of their death but could reasonably be expected to earn income in the future. Someone who was temporarily between jobs or recovering from an illness may also face the same presumption. A homemaker or caretaker’s wages would be calculated based on the market value of the uncompensated services provided to children and other family members.
Statute of Limitations
There is a two-year statute of limitations for bringing a Georgia wrongful death claim to court. If the claim is not filed within two years of the deceased person’s date of death, the right to seek compensation is generally lost. However, there are two notable exceptions:
- Related criminal case. If there is a criminal case pending that deals with the same circumstances related to the wrongful death claim, the two-year statute of limitations begins on the date the criminal case is resolved.
- No probated estate. A wrongful death claim can be tolled for up to five years if the estate of the deceased person hasn’t been probated—effectively extending the statute of limitations to up to seven years after the date of death. This only applies if the estate is the proper party to bring the wrongful death claim.
The Value of Experienced Legal Representation
Working with an experienced wrongful death attorney is the best way to ensure that your rights are protected throughout the process of resolving your claim. At Champion Firm, P.C., our dedicated legal team offers individual attention, constant communication, and representation designed to produce the best possible outcome. Please call to schedule a free, no-obligation initial case review.