Legal Commentary. As a Georgia attorney who practices in the area of wrongful death, my reading of this Georgia wrongful death statute is that it outlines which survivors of a decedent may file an action for wrongful death. The survivors under Section 51-4-2 include a surviving spouse, or if there is not a surviving spouse then a surviving child or children. Section 51-4-2 goes further to clarify that should the surviving spouse die pending a wrongful death action, the surviving children of the decedent can maintain the wrongful death action. If a child of the decedent filed the wrongful death action initially (meaning there was not a spouse surviving the decedent) and that child dies while the action is pending, another surviving child of the decedent can maintain the wrongful death action.
Another unique part of this Georgia statute is that it allows the surviving spouse to release the alleged party causing the wrongful death without the surviving child or children agreeing to this. Should the surviving spouse receive funds as consideration of the release of the alleged wrongdoer, the surviving spouse is required to distribute those funds in accordance with subsection (c). This subsection states that if there is not a surviving child of the decedent, the surviving spouse is permitted to keep the full amount received from the wrongdoer. This applies if the wrongdoer was released or was found liable in a civil action. If there is a surviving child of the decedent and there is a recovery, the surviving spouse has to share the recovery with the surviving child, which shall be maintained by the surviving child’s guardian if the child is a minor. How the funds are shared between the surviving spouse and surviving child or children depends upon how many children survived the decedent. If there was only the surviving spouse and one surviving child, both share the recovery equally. If there was the surviving spouse and two surviving children, each will share 1/3 of the recovery. If there was the surviving spouse and three or more surviving children, the surviving spouse will recover 1/3 of the recovery and the remaining amount of the recovery will be shared equally among the children.
This Georgia statute clarifies another important part of how the amount recovered in a wrongful death action should be maintained if the surviving child is a minor and it depends upon the amount of the minor child’s portion. If the portion is less than $15,000 to the surviving child, this amount should be held by the natural guardian of the child for the benefit of the child, such as paying for shelter, food, clothing, education, etc. If the portion recovered by the surviving child is more than $15,000, this amount should be held by the guardian of the child’s property.
The Georgia Legislature added subsection (e) and (f) to Section 51-4-2 to clarify that any recovery for the wrongful death of decedent will not apply to any debts or liabilities of the decedent. This important part of Section 51-4-2 ensures that even though the decedent may have had debts and liabilities at the time of his or her death, the ‘full value of the life of the decedent’ which is for compensation of the wrongful death of the decedent, is not used to towards such debts or liabilities. This statute also clarifies, in subsection (f), that even though a surviving child of the decedent was born out of wedlock, the surviving child can still recover for the wrongful death of his or her parent, the decedent. See full text below:Section 51-4-2 “Homicide of Spouse or Parent; Survival of Action”
(a) The surviving spouse or, if there is no surviving spouse, a child or children, either minor or sui juris, may recover for the homicide of the spouse or parent the full value of the life of the decedent, as shown by the evidence.
(b)(1) If an action for wrongful death is brought by a surviving spouse under subsection (a) of this Code section and the surviving spouse dies pending the action, the action shall survive to the child or children of the decedent. (2) If an action for wrongful death is brought by a child or children under subsection (a) of this Code section and one of the children dies pending the action, the action shall survive to the surviving child or children.
(c) The surviving spouse may release the alleged wrongdoer without the concurrence of the child or children or any representative thereof and without any order of court, provided that such spouse shall hold the consideration for such release subject to subsection (d) of this Code section.
(d)(1) Any amount recovered under subsection (a) of this Code section shall be equally divided, share and share alike, among the surviving spouse and the children per capita, and the descendants of children shall take per stirpes, provided that any such recovery to which a minor child is entitled and which equals less than $15,000.00 shall be held by the natural guardian of the child, who shall hold and use such money for the benefit of the child and shall be accountable for same; and any such recovery to which a minor child is entitled and which equals $15,000.00 or more shall be held by a guardian of the property of such child. (2) Notwithstanding paragraph (1) of this subsection, the surviving spouse shall receive no less than one-third of such recovery as such spouse´s share.
(e) No recovery had under subsection (a) of this Code section shall be subject to any debt or liability of the decedent.
(f) In actions for recovery under this Code section, the fact that a child has been born out of wedlock shall be no bar to recovery.