When a family member dies, the surviving family members are obviously distraught, and emotions can run high. If the person was lost due to another person’s negligence, issues involving wrongful death benefits could aggravate an already tense situation among the surviving family members.
What is a wrongful death claim?
A claim for wrongful death is a civil lawsuit brought by the surviving family members of an individual who died due to the actions of another person, including:
- Negligence, e.g., a car accident, premises liability, etc.;
- Medical malpractice;
- A defective product or failure to warn; and
- An intentional act, e.g., a crime.
In Georgia, a wrongful death claim must be filed within two years of the date of death (with certain exceptions). In addition, if someone is killed because of a violation of Georgia law, the two-year wrongful death statute of limitation for filing a lawsuit might be paused (tolled) for up to six years pending the outcome of the criminal prosecution of the person responsible for the death. For example, in a motor vehicle accident where the at-fault driver has been charged with a traffic violation or another crime, the statute of limitations might be tolled from the date the person is charged until a final disposition of the criminal proceeding, or for six years, whichever is shorter.
However, if a branch of government in Georgia is at fault for the death, the government needs to be made aware of the loss by what is known as an ante litem notice prior to filing suit. Depending on whether it is a city, county, or state that is at fault, the deadline for providing the notice can be as soon as six months or up to one year after the incident. While the statute of limitations may be tolled during criminal prosecution as discussed above, the ante litem notice requirement may not be tolled, which is why it is important to contact an attorney as soon as possible if you think someone else may be responsible for the loss of your loved one.
Who can file a wrongful death claim?
According to Georgia’s Wrongful Death Act, if a person dies because of the wrongful actions of another individual or entity, the deceased person’s family has the legal right to bring a wrongful death claim for “the full value of the life of the decedent.” The full value of life includes the intangible – the decedent’s relationships, family, and emotional reasons for living, as well as the tangible – the money the deceased person would have earned and the monetary value of any household jobs they performed.
Additionally, the estate of the decedent also has a claim for the wrongful death separate from the family members. Typically, the decedent’s family files a wrongful death action on behalf of the decedent’s estate. However, only certain family members are entitled to bring the claim. These include:
- The spouse, if the person is survived by a husband or wife; or
- Any surviving children if no surviving spouse exists.
Under Georgia law, if the decedent did not have a spouse or children, the administrator or executor of the estate can bring the claim on behalf of the next of kin, which can include the decedent’s parents, siblings, or other surviving family members. Additionally, Georgia law specifies how any award will be allocated among the surviving family members. For example, if the deceased person left a surviving spouse and children, the spouse must share any awarded damages with the children. However, even though the spouse is required to share the award with the children, the spouse can never receive less than one-third of the recovery, no matter how many children there are. Further, Georgia has additional laws that dictate who can bring wrongful death claims or who can receive a portion of the awarded damages in a variety of different scenarios, so it is important that you speak to an attorney knowledgeable in wrongful death claims, such as the attorneys at Harris Lowry Manton, LLP.
What if family members disagree on who will file the claim?
Sometimes surviving family members disagree over who should file the wrongful death lawsuit, and this may result in more than one lawsuit being filed on the decedent’s behalf. However, Georgia courts will only allow one wrongful death lawsuit. Thus, if family members file more than one lawsuit for the same person, the court will typically consolidate all the lawsuits into a single case.
What can be recovered in a wrongful death claim?
The intent of a wrongful death lawsuit is to make a family financially whole after their loss. If the claim is successful, the family members, as well as the decedent’s estate, can recover monetary compensation for the financial and emotional damage sustained due to their loved one’s death, such as:
- Medical bills;
- Funeral and burial costs;
- Lost income that the deceased person would have earned had they lived;
- Pain and suffering related to the loved one’s injuries and death; and
- Loss of consortium, love, companionship, counsel, advice, and emotional support that the loved one would have provided.
If you lost a loved one due to wrongful death, the experienced attorneys at Harris Lowry Manton, LLP, are prepared to help. Call our Atlanta office at 404-998-8847, our Savannah office at 912-417-3774, or fill out our contact page and schedule your free initial consultation today.
One of the nation’s top trial attorneys, Jeff Harris is an award-winning litigator who handles high-profile, complex cases across a wide variety of practice areas. He excels at securing justice for clients who have been seriously injured or killed, holding responsible parties accountable for their actions as well as their negligence.
Read more about Jeffrey R. Harris here.