Who is allowed to file a wrongful law suit is outlined in Georgia Laws O.C.G.A. § 51-4-2, § 51-4-4, and § 19-7-1. Those statutes state that in the event of a person’s death, their spouse may bring a wrongful death on their behalf. If the spouse and the deceased person had minor children, the surviving spouse must also represent the interests of the children in court.
If the decedent had no surviving spouse then the wrongful death lawsuit may be brought by the decedent’s children. If the decedent is without a spouse or children then the lawsuit may be brought by parents of the deceased. If the decedent has no living spouse, children or parents then the lawsuit may be brought by the personal representative of the deceased person’s estate.
However in certain circumstances the Court may allow the lawsuit to be brought by the children or parents even if the decedent has a living spouse. Especially if the living spouse is unavailable, unable to properly bring the suit and of no blood relation to the decedent’s minor children.
In some ways, a wrongful death case is similar to a standard personal injury claim. Negligence must also be proven in many types of personal injury claims, and both a personal injury claim and a wrongful death claim may be based upon a similar event, like a car accident. However, in a wrongful death claim, the injured person is no longer available to bring his or her own case to court. Instead, the case must be brought by the deceased person’s family members — or by the personal representative of the deceased person’s estate if there are no living family members who are allowed to bring the claim (more on this in the next section).
However the difference between an automobile accident or similar event that results is an injury is the loss of life is arguably the most damaging loss that can be suffered. As a result it is important to hire an attorney who not only considers liability on the part of the at faulty driver but also considers culpability related to faulty roadway, defective design and other related third parties such as employers or servers at a dining or drinking establishment.
Under Georgia law any money received pursuant to a wrongful death case “shall be equally divided, share and share alike, among the surviving spouse and the children.” O.C.G.A. § 51-4-2(d)(1). Meaning in most cases the surviving spouse receive the same share. If a child of the decedent is under the age of eighteen, that child’s parent/guardian will be responsible for handling the minor child’s portion.
However, the surviving spouse shall never receive less than one-third of the recovery. O.C.G.A. § 51-4-2(d).
As with most things with the law there are some exceptions to how the money is divided. If a decedent dies with no surviving spouse, the surviving parents share equally in any money recovered. However, if the parents are not married there can be a determination made by the Court as to the allocation or division of the money. In most instances, it is better to still divide the monies equally however in some cases a determination by the Court is warranted.
Be reminded that monies recovered from wrongful death claims is divied up differently tham mony from wrongful death lawsuits. Estate claims are divided pursuant to the Decedent’s will. In the event that the decedent died intestate or without a will then there are laws that determine how the money is divided to the decedent’s heir.
Under intestate law, your spouse inherits all of your intestate estate if you have no living children or living grandchildren. If you do have living children then the spouse and living children divide the intestate estate equally with the spouse receiving at least one third. If you are survived by grandchildren and not children the grandchildren take the portion the children would have been entitled to receive. If you are unmarried and without children then your surviving parents inherit your intestate estate in equal portion. In the event no heirs are located the estate is transferred to the board of education of the decedent’s county of residence.