Who can file a wrongful death claim in Georgia?

In Georgia, the right to file follows a specific order set by law: surviving spouse first, then children, then parents, and finally the estate’s representative if no closer family survives.

Georgia’s Wrongful Death Act gives the surviving spouse the first right to bring the claim. If there is no surviving spouse, the right passes to the decedent’s child or children, whether they are minors or adults. If there is no spouse and no child, the right belongs to the surviving parent or parents. And if none of these family members survive, the administrator or executor of the estate may bring the claim on behalf of the next of kin.

OCGA § 51-4-2OCGA § 19-7-1OCGA § 51-4-5

The children have the right to bring the claim. When there is no surviving spouse, the right belongs to the decedent’s children — and because children survive, the parents do not have the right to file.

Under Georgia law, when someone dies without a surviving spouse, the right to recover for the full value of their life passes to their child or children, minor or adult. The parents only step into that role when the decedent leaves no spouse and no children. So in a situation where both parents and children survive but there is no spouse, it is the children who hold the claim.

OCGA § 51-4-2(a)OCGA § 19-7-1(c)

A wrongful death claim recovers the value of the life that was lost and goes to the surviving family. An estate claim recovers the decedent’s own pre-death losses and goes to the estate. They are two separate claims.

A wrongful death claim seeks the “full value of the life” of the person who died — measured from the decedent’s perspective — and is brought by the surviving family members. Those proceeds go directly to the survivors and do not become part of the estate.

An estate claim (also called a survival action) is different. It is brought by the personal representative of the estate to recover the decedent’s own losses before death: medical bills, funeral expenses, and the pain and suffering they endured. Those proceeds are paid to the estate and distributed under the will or Georgia’s inheritance laws.

Because they are distinct, a single death can give rise to both claims at once — and how a settlement is divided between them matters a great deal to the family.

OCGA § 51-4-2OCGA § 9-2-41 (survival)

The core recovery is the “full value of the life of the decedent” — both its economic value and its intangible worth — measured from the decedent’s point of view.

Georgia measures wrongful death damages by the full value of the life that was lost, not by the survivors’ financial dependence. That value has two parts: the economic side (such as the income and services the person would have provided over their lifetime) and the intangible side (the value of living itself — relationships, experiences, and everything that made the life worth living).

Separately, through the estate’s survival claim, the family may also recover the decedent’s pre-death medical expenses, funeral costs, and pain and suffering.

OCGA § 51-4-1OCGA § 51-4-2(a)

When a spouse and children share a recovery, it is split in equal shares — except the surviving spouse must receive at least one-third.

If a surviving spouse and children recover together, the proceeds are divided per capita (in equal shares), with one important protection: the surviving spouse can never receive less than one-third of the total, no matter how many children there are. Wrongful death proceeds also are not subject to the debts of the decedent or the estate — they belong to the survivors.

OCGA § 51-4-2(d)