Last Updated on November 25, 2020 by Theodore Spaulding
Nothing could be more tragic than losing someone you love because someone else – another driver, an employer, a landlord, or even a doctor – was negligent. If that happens – though it may be quite difficult – you must speak at once to an experienced Cumming wrongful death attorney.
By definition, nobody expects a wrongful death to happen, yet in 2017, over 1,400 people died in traffic accidents in this state. It can happen to anyone – when it’s least expected. Keep reading to learn what everybody in Georgia should know about wrongful death and the law in our state.
While no amount of cash can compensate grieving family members for the sudden, tragic death of a loved one, wrongful death claims can help families to avoid the financial difficulties that some families may face after the abrupt wrongful death of a family member.
How Do Wrongful Death Claims Work in Georgia?
The first and most important question in a case of wrongful death in Georgia is “Who has the claim?” That is, exactly who has a right to bring a wrongful death action in Georgia? The law establishes a “hierarchy” that begins with the deceased person’s spouse.
In our state:
- If the deceased person was married when the wrongful death occurred, the spouse alone has a right to bring a wrongful death action.
- If the decedent also had surviving children, the surviving spouse must act as their representative and share compensation with them. However, Georgia law provides that a surviving spouse receives at least a third of any wrongful death settlement or judgment.
- If the deceased person wasn’t married when the wrongful death occurred, the option to file a wrongful death claim falls to that person’s children.
- If the deceased person was unmarried and childless, that person’s living parents may sue for a wrongful death. If both parents are alive, the compensation amount is split in half.
- If the deceased person was unmarried, childless, and had no parents who are alive, a right to sue falls to the person named as administrator of the deceased person’s estate.
What Complications Can Emerge in Wrongful Death Cases?
Where it gets tricky is when you have a spouse and multiple children. If you have a spouse and four children surviving from the marriage, it is not a five-way split. By law, the spouse receives no less than a third of any settlement or verdict, and the children divide the other two-thirds.
In the same scenario – but if the surviving spouse were no longer alive – the four children would simply split the settlement or judgment four ways.
A complication can emerge if the decedent has children, but one of the children predeceased the decedent. The heirs of the child that predeceased the decedent – the decedent’s grandchildren – do not receive the parent’s share of a judgment or settlement for a wrongful death.
The only exception to that rule is when a decedent’s child is an original claimant in a wrongful death case and dies while that claim is pending. Then – and only then – can that claimant’s children receive that claimant’s share of the wrongful death compensation.
Do Family Members Have to Pay Subrogation Claims?
When a wrongful death distribution in this state is handled properly, the members of the decedent’s family will not need to worry about paying off third parties from their wrongful death damages.
Subrogation claims for the decedent’s health insurance costs, final medical bills, and funeral and burial costs cannot be filed directly against the surviving family members. Instead, in Georgia, those are separate claims that must be filed directly against the deceased person’s estate.
How Are “wrongful Death” and “negligence” Defined in Georgia?
When someone is negligent and accidentally causes someone else’s death – even with no intent or premeditation to harm anyone – the death is legally a wrongful death. Georgia law defines negligence in wrongful death cases as a breach of the duty of care that was owed to the decedent.
Wrongful death cases are quite similar legally to personal injury cases. Plaintiffs in wrongful death cases – the surviving family members – will have to prove essentially the same four “elements of the case” that injury victims must prove when they bring personal injury claims:
- The defendant (the person presumably responsible for the wrongful death) owed a “duty of care” to the victim.
- The duty of care was violated by negligent behavior on the defendant’s part.
- That negligence was a direct reason for the death.
- The survivors’ damages are quantifiable, so the defendant should compensate the family for that amount.
What is the Statute of Limitations in Wrongful Death Cases?
How long do surviving family members have to take legal action after a wrongful death? In most cases in Georgia, the statute of limitations runs for two years, although there may be exceptions in some circumstances.
For instance, if a negligent driver who has caused a wrongful death is tried for DUI, the statute of limitations can be put on hold or “tolled” until the prosecution has concluded.
Of course, the grief can be overwhelming when you suddenly lose someone you love, but especially after a loved one’s wrongful death, your family’s future and financial needs must be soberly and seriously evaluated.
How Much Does It Cost Families to Win Justice?
How much does it cost a family to pursue justice after a loved one’s wrongful death? Georgia’s wrongful death lawyers provide survivors with a no-obligation, free first consultation, so it will not cost you to meet with an attorney and find out more about your family’s rights and the law.
If you bring a legal action, your family pays no attorney’s fee before the settlement or verdict has been obtained. Representing clients on a contingent fee basis lets this state’s wrongful death lawyers help any and every family that needs compensation and justice after losing a loved one.
The right attorney will be sensitive regarding your family’s emotions – but aggressive on your family’s behalf. It may be difficult, but it is imperative to have a reliable Cumming wrongful death attorney advising and representing the survivors after a wrongful death. That is their right.
For close to 15 years, Mr. Spaulding has helped victims of negligence across the state of Georgia resolve personal injury disputes, and he’s received a remarkable number of awards and honors from the legal community recognizing his commitment to clients and to the metro-Atlanta area.
As an undergraduate, Mr. Spaulding belonged to the Phi Beta Kappa honors fraternity at the University of Georgia, and he obtained his legal training at the Georgia State College of Law, where he clerked for the Honorable Judge Rowland Barnes of the Fulton County Superior Court. Mr. Spaulding has also worked for the Securities and Exchange Commission’s Atlanta Enforcement Division. Since 2005, he has dedicated his career to helping the injured victims of negligence and their loved ones win justice in Georgia’s personal injury courts.