One of the most painful situations a family can endure is the death of a loved one after an accident or injury. When a person is fatally injured in an accident, for example, and someone else is responsible for that fatal injury, a wrongful death action may be filed. This type of case is an important way for family members to protect their future without their loved one. For example, the fatally injured person may have been the main breadwinner in a family and without their income, the family may be struggling. In addition, even a child who is fatally injured and has lost his or her future, a wrongful death action may be filed and can compensate the surviving family members for the loss of their loved one. No amount of money can bring back a loved one, but the pain can be eased for the negligence of the person or entity responsible for the death of that loved one.
This is why Georgia law allows for this type of action and also provides that specific individuals can file a wrongful death action. The Georgia Wrongful Death Act located in O.C.G.A. section 51-4-2 sets out the specific individuals who are entitled to file and to recover in the event of a death caused by a negligent party who is liable under that statute. According to the statute, the spouse of the decedent is the party that controls the legal claim for wrongful death. However, that does not mean that the spouse is entitled to all the proceeds recovered from a claim. He or she must share these proceeds with the surviving children of the decedent.
The spouse can be the filing party and is permitted to make decisions for the administration of the claim, such which lawyer to hire, what legal decisions will be made and ultimately whether a the claim will be settled or litigated. The exclusive vesting of this role in the surviving spouse seems to stem from the Georgia legislature’s recognition that the surviving spouse was probably the closest person to the decedent. There also seems to be an understanding that many times the children of the decedent might be minors and that, in the case of a decedent with multiple children, it may be too confusing and cumbersome to share these decisions among many people.
If the decedent was unmarried or divorced at the time of his or her death, then any of the decedent’s children (biological or adopted) may pursue a wrongful death claim. If the decedent had no spouse or living children at the time of death, one or both parents would then be eligible to pursue the wrongful death claim. If the individual has no spouse, children or parents that are living at the time, then the wrongful death claim can be pursued by the Executor/Executrix or Administrator/Administratrix of the decedent’s estate.
The person who is legally authorized to pursue the wrongful death claim is not necessarily the person entitled to collect the proceeds from the claim. As stated above, the surviving spouse must share the proceeds with surviving children. The executor or administrator must distribute the proceeds to the beneficiaries in the decedent’s will or to his or her intestate beneficiaries.
The determination of who is entitled to receive a portion of any wrongful death settlement, award or verdict, and and the relative portion to each can be a complex question. Accordingly, it is wise to consult a Georgia attorney with experience in wrongful death cases.