Who is the Eligible Party to Bring a Wrongful Death Lawsuit in Georgia?

Humphrey & Ballard Law is a trusted law firm that will fight for your family’s right to compensation in a wrongful death lawsuit in Atlanta. The surviving relatives can file a wrongful death lawsuit in Georgia if a death occurs due to the negligence of another person/company. It is important to determine who is eligible to bring a wrongful death claim and an estate claim.

Wrongful Death Lawsuit vs. Estate Claim

Georgia’s wrongful death claims are usually divided into two distinct claims. First, a wrongful death claim is for the “full value of the life of the decedent.” Second, an estate claim is brought by the estate to seek compensation for financial losses associated with the death. These claims include funeral and burial expenses, medical expenses, punitive damages, and conscious pain and suffering before death.

The Estate’s Administrator files the estate claim. However, the decedent’s survivors will be the plaintiff in a Georgia wrongful death case. Please refer to O.C.G.A. SS 51-4-1 et al.

Who Can Bring a Wrongful Death Lawsuit in Georgia?

Georgia gives the following family members the right to file a wrongful death lawsuit. If the deceased has no surviving spouse, children, or parents, then the estate’s executor or administrator can file a wrongful death claim.


Georgia law recognizes the spouse who was legally married at the time of the death as the rightful plaintiff. The most straightforward and beneficial scenario is to represent the spouse. The suit is brought by the surviving spouse on behalf of themselves, and the children of the decedent. The Georgia code explicitly includes children born outside of marriage.

The spouse must act prudently. However, except in exceptional circumstances, the spouse can take any action. He or she does not need to consult with the children of the deceased or obtain permission from them. Children cannot also pursue the claim for their own benefit unless they are under exceptional circumstances. Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1311 (11th Cir. 2009 (collecting Georgia cases that illustrate when Georgia courts used their equitable power to allow children to file.

The surviving spouse has a near unassailable right to initiate and settle any lawsuit, but the settlement must still equally be divided between the children who are still living, with the exception that the spouse will always receive at least one-third of the total recovery.

As an example, suppose that the spouse who is surviving files a wrongful death lawsuit in Atlanta. Four children were also left behind by the decedent. Settlement of the wrongful death suit was reached for $1 million. The surviving spouse would receive at least $333,333 after deducting all applicable fees and expenses. The remaining two-thirds would be divided equally between the four children. If the spouse who survived dies in a wrongful death case is not settled or tried by a jury, the correct parties would be the four children who remained. O.C.G.A. SS 51-4-2(b),-(d).


If there is no spouse left, the wrongful death claim will be filed by the children of the deceased. Notably, any children can bring a wrongful death lawsuit (there can only one suit), although other children of the deceased can still bring a later action to recover a portion.

See Caldwell, 334 Ga.App. 68,69 (2015) (reaffirming Georgia law which states that “less than all potential plaintiffs can bring” a case for wrongful death, potential plaintiffs could then bring a second action for a “proportionate portion,” and that a defendant may only bring one wrongful-death action). An experienced practitioner will quickly see the importance of addressing the relationship between the surviving siblings as soon as possible to avoid any problems later.


If the decedent is a child of a deceased spouse and has no children, the parents are entitled to a wrongful death lawsuit. The District Court for the Northern District of Georgia ruled in July 2020 that the Georgia parental-recovery program dealing with unborn children was unconstitutional. However, the decision was not reached by other children. Jackson v. Jones, 358 Ga. App. 69, 69 (n. 8 2021) (recognizing decision of the Northern District of Georgia District court regarding unborn children).

Parents have the right to recover jointly if they live together and are not divorcing. The right to recover is still available to both parents if they are married and not separated. However, one parent can bind the other in representation if the parent refuses or cannot be located. The parents must share any recovery equally unless there is a motion to alter the distribution. O.C.G.A. SSSS 19-7-1 and 51-4-4. A lawyer should also address the question of divorce or separation. This is to avoid any future headaches.

We Can Help You File a Wrongful Death Lawsuit in Atlanta

Humphrey & Ballard Law provides aggressive, skilled representation for families in wrongful death lawsuits in Atlanta. For a free consultation, call us at 404-341-0499 if you have lost a loved one and believe that a wrongful death claim might be possible.