Georgia law strictly limits who has the right to bring a wrongful death claim, and that right follows a specific order of priority: the surviving spouse first, then the decedent’s children, then the decedent’s parents, and finally, if none of those family members exist, the personal representative of the decedent’s estate.
Knowing where a family falls in that order determines who controls the case and, when a spouse and children are involved, how to share any recovery.
The Surviving Spouse Files First
If the decedent was married at the time of death, the surviving spouse holds the exclusive right to bring the wrongful death claim under O.C.G.A. § 51-4-2. This is true even if the couple was separated, so long as the marriage had not been legally terminated by divorce.
When the decedent also leaves surviving children, the spouse brings the claim on behalf of both themselves and the children, and can settle or resolve the case without the children’s consent, including adult children from a prior relationship.
However, Georgia law guarantees the surviving spouse a minimum share of any recovery: at least one-third of the total amount recovered, regardless of how many children there are. The remainder is divided among the children.
If There Is No Surviving Spouse, the Children File
If the decedent leaves no surviving spouse, the right to bring the claim passes to the decedent’s children, who share it jointly. This applies whether the children are minors or adults, and a child born out of wedlock has the same right to recover as any other child.
When the children entitled to recover are minors, Georgia law puts protections in place before any settlement funds can be released.
If a parent has custody of the minor children, that parent can generally pursue the claim on the children’s behalf, but the probate court will typically require appointing a conservator to hold and manage the children’s share of the recovery until the children reach adulthood.
The expectation is that the surviving parent continues providing day-to-day care and support using their own resources, while the settlement funds are preserved for the child’s future rather than used as a substitute for that support.
If There Is No Spouse or Child, the Parents File
When the decedent leaves no surviving spouse and no children, the right to recover passes to the decedent’s parents under O.C.G.A. § 19-7-1(c).
This provision applies broadly. It covers the death of a minor child, but it also covers the death of any unmarried, childless adult, regardless of age, since Georgia law treats that person as a “child” for purposes of this statute as long as they leave no spouse or children of their own.
If the parents are living together and are not divorced, the right belongs to them jointly. If one parent has died, the right belongs solely to the surviving parent.
If the parents are divorced, separated, or living apart, each retains an independent right to recover, and if they cannot agree on how to proceed, one parent can act on behalf of both, with the court dividing any recovery between them, typically equally unless a parent requests a hearing to argue for a different allocation based on their relationship with the decedent.
This is also the section of Georgia law that addresses the death of an unborn child. Under current Georgia law, a wrongful death claim exists once a detectable human heartbeat is present, as defined in O.C.G.A. § 1-2-1. This is a more protective and more precise standard than the “quickening” test Georgia courts applied in past decades.
Georgia law also makes clear that this claim does not extend to a legal abortion; neither parent has a wrongful death claim against a medical provider in that circumstance.
If There Is No Spouse, Child, or Parent, the Estate Files
If none of these family members survive the decedent, the right to bring the wrongful death claim falls to the personal representative of the decedent’s estate, meaning the executor named in a will or the administrator appointed by the probate court.
In this situation, the recovery is held for the benefit of the decedent’s next of kin rather than becoming an asset of the estate itself.
It’s worth noting who is left out of this priority order entirely: siblings, grandparents, nieces, nephews, and other more distant relatives have no independent right to bring a wrongful death claim in Georgia.
If a decedent is survived only by relatives like these, the claim can proceed only through the estate, which typically means one of those relatives must first be appointed as the estate’s personal representative.
The Separate Estate Claim
Alongside the wrongful death claim itself, Georgia recognizes a second, separate claim belonging to the estate: the right to recover the decedent’s outstanding medical bills, funeral expenses, and the decedent’s own pain and suffering in the time between injury and death.
This estate claim exists independently of the wrongful death claim’s priority order described above, and in situations where a decedent leaves only more distant relatives like siblings or nieces and nephews, this estate-based claim is often the only avenue available to them, since bringing it requires someone to be appointed as the estate’s personal representative rather than qualifying under the spouse, child, or parent categories.
Talk to a Georgia Wrongful Death Attorney
Determining exactly who has the right to file, especially in situations involving divorced or estranged parents, minor children, or a decedent with no immediate family, is not always straightforward, and filing under the wrong name can cause delays or complications during an already difficult time.
Attorney Roger Krause explains these priority rules, and the complications that come with them, in his book Fighting Back: A Guide to Wrongful Death Claims in Georgia. Download your free copy here.
If your family has lost a loved one and you are unsure who has the right to bring a claim, call Wrongful Death Krause Law Firm at 404-835-8080 or contact our office for a free consultation. We never charge a fee unless we recover for your family.
We can help identify who holds that right under Georgia law, explain how any recovery would be shared, and guide you through the protections that apply when minor children are involved.