When someone is killed by the negligent, reckless, or intentional conduct of another, multiple legal claims are created. Before we examine which family members are entitled to the proceeds of a lawsuit for a loved one who is killed, let’s look at a couple of important issues about wrongful death lawsuits generally.
Asserting The Claim: Preliminary Procedural Points Regarding Wrongful Death Actions
First, a surviving spouse or child has a statutory right to assert a claim for the deceased person’s (in legal parlance, the “decedent’s”) wrongful death. (O.C.G.A. § 51–4–2(a)). If there is no surviving spouse or child, the administrator (if the decedent died without a will) or executor (if the decedent had a will) of the decedent’s estate can be appointed to bring the wrongful death action, which is a claim for the full value of the life of the person who was killed. (O.C.G.A. § 51–4–5(a)). Second, the decedent’s estate has a claim for any pain and suffering the deceased person endured in connection with his/her death. These are two separate and distinct causes of action, but they are ordinarily asserted in a single lawsuit naming both the surviving spouse/child and the estate administrator as co-plaintiffs.
Claims by the Estate (pain and suffering): Normally in Georgia you have two years from the date of your injury to file a lawsuit, or your claim will be forever barred by the statute of limitations. When the “injury” is a death, however, and if there is no administrator for the decedent’s estate, the time between the death and the time an estate representative is appointed does not count towards the statute of limitations, up to a maximum of five years. (O.C.G.A. § 9-3-92). Therefore, the 2-year statute of limitations on the estate’s claims for pain and suffering does not begin to run until an administrator is appointed for the estate.
To illustrate, let’s say someone is killed in a trucking crash on July 1, 2019, and dies without a will. The estate administrator is not appointed until June 30, 2024. Even though the statute of limitations is ordinarily two years, the estate still has one more day to file suit for the decedent’s pain and suffering, since the statute of limitations is “tolled” (delayed) up to five years from the date of injury (e.g., July 1, 2024) as long as there is no estate administrator. After the five-year mark, however, the estate’s claims are gone forever—administrator or not.
Wrongful death claims (which rest with the surviving spouse or child): If the surviving spouse declines to pursue a wrongful death claim, someone else can be appointed to represent a surviving minor child to pursue such claims.
Who Gets The Money: Hierarchy Of Next Of Kin Entitled To Proceeds Of Wrongful Death Case
As noted above, if the decedent leaves behind no spouse and no children, the administrator or executor of the decedent may bring the wrongful death action. (O.C.G.A. § 51-4-5(a)). In that scenario, the administrator or executor must hold the money recovered to be distributed to the decedent’s next of kin.
So, who is the decedent’s next of kin? Georgia’s Court of Appeals has mandated that who qualifies as “next of kin” and is entitled to the proceeds of a wrongful death claim is governed by the same law of “descent and distribution” that controls who is an heir to the property and assets of a person who dies without a will. (Stewart v. Bourn, 250 Ga. App. 755 (2001)). Per O.C.G.A. § 53-2-1, the order goes like this:
- Decedent was married with no children: the surviving spouse is the sole beneficiary of the wrongful death suit.
- Decedent was married and had children: the spouse and the children are equal beneficiaries of the wrongful death suit (but the spouse’s share will not be less than one third). Note, this is true regardless of who each of the children’s natural parent(s) were; whether any were born out of wedlock; or were abandoned or estranged from the decedent.
- Decedent was not married and had no children: the decedent’s parents are the beneficiaries.
- Decedent was not married, had no children, and no surviving parents: the siblings of the decedent share equally. Note also that if there are any deceased siblings, the deceased sibling’s share passes to his/her own children (e.g. the decedent’s nieces and nephews). (Stewart v. Bourn, 250 Ga. App. 755 (2001). If all siblings are deceased, then the decedent’s nieces and nephews share equally.
- Decedent was not married, had no children, no surviving parents, and was an only child: the decedent’s surviving grandparent(s) share equally.
- Decedent was not married, had no children, no surviving parents, no surviving grandparents, and was an only child: the decedent’s aunts and uncles share equally. If any aunts or uncles are deceased, that person’s share passes to his/her own children (e.g., the decedent’s cousins).
- Decedent was not married, had no children, no surviving parents, no surviving grandparents, no aunts, uncles, or cousins, and was an only child: this is where it gets complicated, and involves an analysis of all known relatives and the proximity of their relation to the decedent.
When the decedent is a minor child, a parent who willfully abandoned the child can neither assert claims for the death, nor receive benefits from any such claims. However, a parent who has lost custody of the child but then “substantially complied with” the court’s child support orders is not barred from inheriting from the minor child’s estate. O.C.G.A. § 53-2-1(d).
As you can see, a wrongful death claim involves intricate legal pitfalls which should only be navigated by an experienced, knowledgeable wrongful death lawyer. If a family member or loved one has been killed due to the negligence of another, call 404-800-9933 today for a free consultation with a wrongful death attorney at Rafi Law Firm.
