Who Can File a Wrongful Death Claim?
In personal injury cases, the injured victim files the lawsuit. When that person dies, however, other people may need to file the claim on their behalf.
Only certain family members or the personal representative of the decedent’s estate may file a wrongful death claim in Georgia.
The surviving spouse of the deceased, for example, will have the first chance to file a wrongful death claim. If this person had minor children with the deceased, the surviving spouse must bring the claim on behalf of both themselves and their children. Regardless of children, the surviving spouse is entitled to at least one-third of the total recoverable amount.
If there is no surviving spouse, the right to bring a wrongful death claim goes to any surviving adult children. If there is no surviving spouse and no surviving adult children, the surviving parent(s) of the deceased may file. The personal representative of the decedent’s estate may also bring a claim if there are no surviving spouses or children.
How to Go About a Wrongful Death Claim
If you think that you have a wrongful death claim, there are a number of things that you need to do as early on in the process as possible.
Some steps to take when going about a wrongful death claim include:
- Get the decedent’s affairs and legal documents, such as their will, in order. The deceased person cannot bring a suit themselves, so the decedent’s personal representative (typically named in a will) will need to file the action. The personal representative will recover compensation on behalf of the deceased person’s estate and distribute it to their beneficiaries.
- Start putting together evidence for your wrongful death claim. Evidence could include medical reports, photos of the accident, eyewitnesses’ statements, and any other accident-related information you can gather. You should also document any monetary losses associated with the death, including premortem medical expenses, funeral and burial expenses, lost wages, etc. You may consider asking for an autopsy, as well, as it can help you prove your loved one’s cause of death and strengthen your claim.
- Hire a lawyer – your lawyer can provide more insight regarding the specifics of your case and what you need to do to improve your chances of a successful suit. You should hire an attorney as soon as possible.
These are just a few of the steps you should take when considering a wrongful death claim. As we mention above, your attorney can help you with the rest. For example, your attorney can help you prove your case.
What Do I Need to Prove?
You must prove four (4) elements of a wrongful death suit in order to be successful. These include:
- Duty of care: The first thing that you must prove is that the at-fault party (the defendant) owed your loved one a duty of care. In many cases, like car accidents, the duty of care is implied.
- Breach of duty of care: You must prove that the defendant breached the duty of care they owed your loved one via a negligent, reckless, intentional, or criminal act.
- Causation. Perhaps most importantly, you must prove that the death would not have occurred but for the negligence of the defendant.
- Damages: Finally, you must prove that the deceased person’s estate and beneficiaries suffered actual losses as a result of the death.
Our compassionate legal team can help you prove your claim and recover damages.
What is the Difference Between Wrongful Death and Survival Action in Georgia?
Georgia law distinguishes between wrongful death and survival actions when someone dies as a result of another party's negligence or intentional act. While both claims relate to an individual's death, they have distinct purposes and beneficiaries. Here's an overview of the difference between wrongful death and survival action in Georgia:
Wrongful Death: Wrongful death is a legal claim that can be filed by specific individuals closely related to the deceased person. Wrongful death claims seek compensation for the losses suffered by surviving family members as a result of the death. These losses may include the financial support the deceased person would have provided, the emotional support and companionship they would have offered, medical and funeral expenses, and the pain and suffering endured by the deceased person before their death.
The surviving spouse usually has the right to file a wrongful death lawsuit in Georgia. If there is no surviving spouse, the claim may be brought by the deceased's children. If there are no surviving spouse or children, the parents of the deceased person can file the claim. If none of these parties exist, the right to file the wrongful death claim may pass to the deceased's estate.
Survival Action: A survival action, on the other hand, is a legal claim on behalf of the deceased person's estate. It allows the estate to pursue legal remedies for any harm or damages suffered by the deceased person prior to their death. Unlike a wrongful death claim, a survival action seeks to compensate the estate for the losses the deceased person experienced. This is rather than compensating the surviving family members.
In Georgia, a survival action can include damages for pain and suffering, medical expenses, lost wages, and other losses that the deceased person incurred as a result of the incident that caused their death. The damages awarded in a survival action are meant to benefit the estate, and they become part of the deceased person's assets.
Both wrongful death claims and survival actions relate to the death of an individual, but the wrongful death claim compensates surviving family members for their losses resulting from the deceased person's death, while survival actions allow the deceased person's estate to seek compensation for harm suffered prior to death. It's critical to consult with an attorney who specializes in Georgia law to understand the specific details and requirements for filing these types of claims.
Call Our Georgia Wrongful Death Lawyers Today
To learn more about filing a wrongful death claim in Georgia, please contact our wrongful death attorney at Pritchard Injury Firm today.
We know how devastated you feel, and we want to help you recover the compensation you and your family deserve.
Call us at (470) 577-8152 or send us a message online today – our compassionate Georgia wrongful death lawyers offer consultations free of charge.
Pritchard Injury Firm also helps families of victims with wrongful death claims in Bartow County, Cobb County, Cherokee County, and throughout the great state of Georgia.
Damages Recoverable
The state of Georgia recognizes two separate types of wrongful death claims: one to compensate surviving family members, and one to compensate the decedent’s estate. By filing both types of claims, you can recover for both economic and noneconomic losses.
In a claim brought by or on behalf of the deceased’s surviving family members, damages are a reflection of the “full value” of the deceased person’s life. Economic damages include losses like the wages that the deceased would have earned had they lived. Noneconomic damages for surviving family members account for the monetary value of the deceased’s care and companionship to surviving relatives.
A relative or representative of the deceased person’s estate can also bring a wrongful death claim on the estate’s behalf. Damages for such claims, known as “survival actions,” attempt to compensate the decedent’s estate for losses the decedent would have suffered had they survived.
For example, paying medical expenses associated with a wrongful death decreases the value of the decedent’s estate. This means that beneficiaries of the estate will receive less money or property. A representative or beneficiary can sue to recover this lost value. This type of claim also includes noneconomic damages for losses, like the pain and suffering the deceased had to endure before their death.
How a Georgia Wrongful Death Lawyer Can Help
Losing a loved one is incredibly difficult. As you grieve and think about your future, working with a Georgia wrongful death lawyer can take a load off of your plate.
When you hire an attorney, your legal team will be responsible for managing all of the elements of your wrongful death claim, including investigating your case, proving fault and causation, calculating damages, filing all wrongful death paperwork, negotiating your claim with an insurer, identifying beneficiaries and the representative of the estate, and filing a lawsuit in court if necessary.
Your attorney will also be available to answer any questions you have throughout the process and help you seek the best possible outcome in your case.
What Is the Statute of Limitations for a Wrongful Death Claim in GA?
Surviving family members and personal representatives of the deceased person’s estate must file wrongful death claims and survival actions within two (2) years of the date of death. Generally, under O.C.G.A. § 9-3-33, you only have 2 years to file without losing your right to legal action entirety.
In some situations, however, the clock for the 2-year time limit may pause, allowing a relative or representative to file a claim more than 2 years after the death occurs.
The clock that starts running on the date of death can pause for up to five (5) years while the administrators of the decedent’s estate value and distribute property and pay the decedent’s outstanding debts. This process is called probate, and if the decedent had high value assets, it can take a long time. Once the administrator has probated the estate, the 2-year timer for the wrongful death claim will start to run again.
If there is a criminal case in progress regarding the events of the accident that caused the wrongful death, the clock will also pause until the criminal case concludes. If you are thinking of filing a wrongful death claim, you should speak to a Georgia wrongful death lawyer as soon as possible to avoid missing the filing deadline.
Remember, the statute of limitations is the maximum amount of time a person has to file a lawsuit to protect their rights. In the context of wrongful death, the clock usually starts running on the day your loved one passes away. This might be later than the date of the accident or event that severely injured them, and the clock can be paused for any of the reasons listed above.
At Pritchard Injury Firm, we receive countless questions about the Georgia wrongful death statute of limitations. We are happy to answer these questions and help ensure that our clients do not let the clock run out on their right to sue.
You should never rely on exceptions when it comes to wrongful death lawsuits. Instead, you should talk to our Georgia wrongful death attorneys as soon as possible, find out how much time remains, and discuss the next steps. Don’t lose your chance to pursue justice – protect your rights and contact us today.
