You've Got Questions

We've Got Answers.

1)  Can a married, yet separated, spouse still sue for the wrongful death of the other spouse?

 

A separated spouse still has the right to sue for the wrongful death of the other spouse.

 

The wrongful death statute expressly gives the right to pursue a claim to a surviving spouse.  The statute does not question the quality of the marriage nor does it qualify for legally separated spouses.

 

As long as the spousal relationship has not been legally terminated by Court Order, then the surviving spouse can pursue wrongful death claims.

 

References:

O.C.G.A. § 51-4-2(a)

Dunbar v. Charleston & W. C. Ry. Co., 186 F. 175, 176 (C.C.S.D. Ga. 1911)

(Back to Top)

2)  Do all children need to participate in order to bring a wrongful death claim?

 

If a parent dies without leaving a surviving spouse, the wrongful death claim can be pursued by the “child or children.”

 

Any one of the surviving children may pursue the wrongful death claim without full participation of the other children.

 

It’s important to remember that standing to sue and standing to recover are two different things.  Just because one surviving child sues for wrongful death does not entitle them to more damages – the right to recover for wrongful death damages belongs to all beneficiaries as defined by statute.

 

References:

O.C.G.A. § 51-4-2(a) & (d)

Caldwell v. Evans, 334 Ga. App. 68, 70–71, 778 S.E.2d 235, 238 (2015)

Leanhart v. Knox, 351 Ga. App. 268, 271, 830 S.E.2d 545, 548 (2019)

(Back to Top)

3)  What duties does a surviving spouse owe to surviving children in a wrongful death case?

 

Since the surviving spouse has exclusive right to pursue a wrongful death case, but surviving children are entitled to a portion of wrongful death benefits, the surviving spouse owes the children certain duties.

 

In a way, the surviving spouse acts in the individually capacity as well as representative of the surviving children.  However, the surviving spouse does not need permission of the surviving children (or any wrongful death beneficiaries) to pursue and/or settle a wrongful death case.

 

Instead, they just owe the surviving children/beneficiaries a duty to act prudently with the utmost good faith.  This includes a duty to prudently assert, prosecute, and settle wrongful death claims.

 

References:

O.C.G.A. § 51-4-2(c)

Seay v. Valdosta Kidney Clinic, LLC, 353 Ga. App. 378, 381, 837 S.E.2d 529, 532 (2020)

Home Ins. Co. v. Wynn, 229 Ga. App. 220, 221, 493 S.E.2d 622, 625 (1997)

Emory Univ. v. Dorsey, 207 Ga. App. 808, 809, 429 S.E.2d 307, 309 (1993)

Leanhart v. Knox, 351 Ga. App. 268, 271, 830 S.E.2d 545, 548 (2019)

Matthews v. Douberley, 207 Ga. App. 578, 581, 428 S.E.2d 588, 590 (1993)

 

(Back to Top)

4)  What if a surviving spouse violates their duty to surviving children?

 

Surviving children are not helpless if the surviving spouse refuses to pursue a wrongful death claim or fails to do so prudently with the utmost good faith.

 

Surviving children have a cause of action for breach of the spouse’s duty as representative. 

 

Or, in rarer cases, Georgia courts will exercise its equitable powers to transfer the right to sue from the surviving parent to the surviving children.  So, there are remedies for surviving children, though the remedies are not guaranteed.

 

If the standing to pursue a wrongful death claim is in dispute, the proper way to resolve this dispute is by bringing a declaratory judgment proceeding with the court.

 

References:

Home Ins. Co. v. Wynn, 229 Ga. App. 220, 222–23, 493 S.E.2d 622, 626 (1997)

Brown v. Liberty Oil & Ref. Corp., 261 Ga. 214, 215–16, 403 S.E.2d 806, 807–08 (1991)

Moore v. Mylan Inc., 840 F. Supp. 2d 1337, 1343 (N.D. Ga. 2012)

Rai v. Reid, 294 Ga. 270, 274–75, 751 S.E.2d 821, 825–26 (2013)

King v. Goodwin, 277 Ga. App. 188, 189–90, 626 S.E.2d 165, 166–67 (2006)

Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1311 (11th Cir. 2009)

Lambert v. Allen, 146 Ga. App. 617, 618–19, 247 S.E.2d 200, 202 (1978)

 

(Back to Top)

5)  If the surviving spouse re-marries, does this terminate their right to sue for wrongful death?

 

No, the remarriage of a surviving spouse does not extinguish their right to sue for wrongful death.

 

References:

Georgia R.R. & Banking Co. v. Garr, 57 Ga. 277, 278–80 (1876)

 

(Back to Top)

6)  Does an adopted child have standing to sue for the wrongful death of their natural parents?

 

If their parental rights have been legally terminated, the child no longer has standing to sue for the wrongful death of his natural parents.

 

But, this only applies if the parental rights were severed prior to the death of the natural parent(s).  If the adoption occurs after the death of the parent(s), this will not prevent the surviving child from pursuing a wrongful death claim.

 

Similarly, a child has no right to sue for the death of a stepparent who has not legally adopted the child.  But, they do continue to maintain a right to sue for the death of a parent, even if their parents are legally divorced.

 

References:

Emory Univ. v. Dorsey, 207 Ga. App. 808, 808–09, 429 S.E.2d 307, 308 (1993)

Eig v. Savage, 177 Ga.App. 514, 339 S.E.2d 752 (1986)

Johnson v. Parrish, 159 Ga. App. 613, 613, 284 S.E.2d 111, 112–13 (1981)

Limbaugh v. Woodall, 121 Ga. App. 638, 639, 175 S.E.2d 135, 136 (1970)

Marshall v. Macon Sash Door & Lumber Co., 103 Ga. 725, 30 S.E. 571, 572 (1898)

Weems v. Saul, 52 Ga. App. 470, 183 S.E. 661, 661–62 (1936)

Avery v. S. Ry. Co., 44 Ga. App. 613, 162 S.E. 648, 649–50 (1931)

U. S. Fid. & Guar. Co. v. Dunbar, 112 Ga. App. 102, 109, 143 S.E.2d 663, 669 (1965)

St. Paul Fire & Marine Ins. Co. v. Miniweather, 119 Ga. App. 617, 617, 168 S.E.2d 341, 342 (1969)

 

(Back to Top)

7)  Are grandchildren allowed to bring a wrongful death claim if there are no surviving spouses, children, or parents?

 

No, grandchildren are not among the class of plaintiffs authorized by Georgia’s wrongful death statutes. 

 

So, grandchildren have no right to bring a wrongful death claim.  if there are no surviving spouses, children, or parents, then only the estate administrator has standing to bring the wrongful death claim.

 

References:

O.C.G.A. § 51-4-2(a)

O.C.G.A. § 19-7-1(c)(1)

O.C.G.A. § 51-4-4

O.C.G.A. § 51-4-5(a)

Tolbert v. Maner, 271 Ga. 207, 209, 518 S.E.2d 423, 425–26 (1999)

 

(Back to Top)

8)  Can a wrongful death claim be pursued for an unborn fetus?

 

A wrongful death claim can be pursued for the death of an unborn fetus, but only if the unborn child had a “detectable human heartbeat” at the time of the death.

 

References:

O.C.G.A. § 19-7-1(c)(1)

O.C.G.A. § 1-2-1

(Back to Top)

9)  Can one parent pursue a wrongful death claim without the participation of the other parent?

 

If the decedent has no surviving spouse or children, then any of the decedent’s parents can pursue a wrongful death claim.

 

The right to the wrongful death claim belongs to each parent, even if they are divorced.

 

This also means that one parent can be estranged from their decedent child, but still have standing to sue for wrongful death.  Or, the child can be born out of wedlock and the parent still have rights to sue.

 

However, the court can terminate the parental rights strictly for wrongful death claim purposes if the court finds that parents have acted in a way to terminate the parent-child relationship as defined by the statute (i.e. adoption, abandonment, cruel treatment, etc.).

 

References:

O.C.G.A. § 19-7-1

Blanton v. Moshev, 262 Ga. 254, 255, 416 S.E.2d 506, 507 (1992)

City of Fairburn v. Clanton, 102 Ga. App. 556, 558, 117 S.E.2d 197, 198–99 (1960)

Belluso v. Tant, 258 Ga. App. 453, 455, 574 S.E.2d 595, 598 (2002)

 

(Back to Top)

10)  If a beneficiary’s contributory negligence caused the decedent’s death, is the wrongful death claim barred as to the remaining beneficiaries?

 

One beneficiary’s wrongful conduct does not prevent the remaining beneficiaries from pursuing and recovering wrongful death claims.

 

For instance, if one spouse murders or causes the death of the other spouse, the surviving children have standing to sue the surviving spouse/parent for wrongful death.

 

Or if one of the children’s negligence or wrongful conduct contributes to the death of the parents, the surviving children and/or parents would still have standing to sue for wrongful death.

 

References:

Carringer v. Rodgers, 276 Ga. 359, 364–65, 578 S.E.2d 841, 844–45 (2003)

Happy Valley Farms v. Wilson, 192 Ga. 830, 838–39, 16 S.E.2d 720, 725 (1941)  

McIver v. Oliver, 353 Ga. App. 106, 108–09, 836 S.E.2d 535, 537–38 (2019), reconsideration denied (Nov. 12, 2019)

Belluso v. Tant, 258 Ga. App. 453, 455, 574 S.E.2d 595, 597–98 (2002)

Lynn v. Wagstaff Motor Co., 126 Ga. App. 516, 518–19, 191 S.E.2d 324, 326 (1972)

Davis v. Cox, 131 Ga. App. 611, 613–14, 206 S.E.2d 655, 657 (1974)

(Back to Top)

11)  Can interspousal immunity shield one spouse from being sued for causing the death of the other spouse?

 

Georgia’s Supreme Court has expressly held that interspousal immunity is unconstitutional as applied to wrongful death claims because it arbitrarily distinguishes between classes of wrongful death claimants.

 

This is a long way of saying that interspousal immunity does not necessarily apply to wrongful death claims because the policy reasons for interspousal immunity no longer apply.

 

References:

Jones v. Jones, 259 Ga. 49, 49, 376 S.E.2d 674, 675–76 (1989)

 

(Back to Top)

FREE CASE
EVALUATION

Thanks for submitting!