Who Has the Right to Sue Over a Wrongful Death

By on January 9, 2019
Accidental Death

According to the Center for Disease Control (CDC), there were 161,374 unintentional injury deaths in the U.S. in 2016 equaling about 50 unintentional injury deaths per 100,000 members of the U.S. population, and the death occur for a host of different reasons. For example, according to the National Highway Traffic Safety Administration (NHTSA), there were 37,461 car accident fatalities in the same year. This loss of life that occurs each year due unintentional accidents or events has a devastating impact on the lives of the accident victim’s family members, and this is particularly true when an accident is caused by the negligent actions of another person.

When a family member is killed due to the negligent actions of another party, the law allows the family members of the deceased to seek damages from the negligent party for things such as funeral expenses, medical bills, pain and suffering, lost wages, etc. This class of personal injury cases are known as wrongful death claims, and they can take many forms and involve multiple areas of law. However, there are very specific rules regarding which family member can bring a wrongful death action that you should be aware of.

Wrongful Death Laws in Georgia

According to the wrongful death attorneys at Cambre & Associates, there are a two main factors that must be analyzed to determine who can bring a wrongful death claim in connection with the passing of a loved one:

  • The position the deceased held within the family structure such as a child, parent, or grandparent
  • The surviving family members the deceased has such as a spouse, children, or parents

Survival of Action in Georgia Wrongful Death Claims

These factors are critical due to the survival of action clauses within one of our state’s wrongful death statutes, O.C.G.A. § 51-4-2. Survival of action clauses transfer the right to bring a wrongful death action to different family members when either the deceased does not have a specific type of next of kin such as an adult with no spouse, or a family member dies while a wrongful death action is being executed in court. There are several “survival of action” clauses within O.C.G.A. § 51-4-2 that transfer a right to bring a wrongful death claim up and down the deceased’s surviving family tree. This statute when paired with O.C.G.A. § 19-7-1 and O.C.G.A. § 51-4-5 covers the majority of wrongful death action scenarios that occur, and the transfer chain of the right to bring a wrongful death suit in Georgia can be summarized as follows:

  • If the deceased has a spouse: The spouse has the right to bring a wrongful death claim, and the spouse can release the negligent party, which can typically happen via a settlement, at any time without permission from the deceased’s children.
  • If the deceased doesn’t have a spouse: The child or children of the deceased have the right to bring a wrongful death action against the negligent party, regardless of whether they are minors or not.
  • If the deceased doesn’t have a spouse or any children: The parents of the deceased can bring a wrongful death action either jointly, if they are still married, or separately, if they are divorced.
  • If the deceased doesn’t have a spouse, children, or surviving parents: The administrator or executor of the deceased estate can bring a wrongful death claim on behalf of the deceased’s next of kin, regardless of whether the next of kin can be immediately located or not.

As with all legal matters, you should always consult with a wrongful death attorney before initiating any type of wrongful death action. Your lawyer can determine whether or not a viable wrongful death claim can be initiated while ensuring that you are entitled to bring a wrongful death action under Georgia law.

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Who Has the Right to Sue Over a Wrongful Death