What happens when a loved one dies, leaving behind a spouse and children, but the spouse is not related to the children? This often occurs when parents remarry, each with their own children.
Sometimes it feels like your father or mother’s new spouse – your stepmother or stepfather is evil or gold-digging.
Or, in the alternative, sometimes it feels like your husband’s or wife’s kids are demanding way too much.
Who gets the money?
The good news is that the answer is established by Georgia statutory law. The reason this is “good news” is because this statutory law is clear and unambiguous. It is not subject to judicial interpretation.
Finally, it is good news because the survivors can be represented by the same attorney and the family should pick just one attorney.
O.C.G.A § 51-4-2 (2021) is the controlling statute, and subpart (d) is the one that discusses allocation. The amount of the recovery turns on the number of the decedent’s children (i.e. how many kids did your father or mother have?).
Below, we have created a quick chart, showing the allocation or percentages given to the surviving spouse and the amount given to each child.
Total No. of Children | Percent for Spouse | Percent per each Child |
1 | 50% | 50% |
2 | 33.3% | 33.3% |
3 | 33.3% | 22.23% |
4 | 33.3% | 16.68% |
| 5 | 33.3% | 13.34% |
The plain language of the statute provides, in part:
(1) Any amount recovered under subsection (a) of this Code section shall be equally divided, share and share alike, among the surviving spouse and the children per capita, and the descendants of children shall take per stirpes …
(2) Notwithstanding paragraph (1) of this subsection, the surviving spouse shall receive no less than one-third of such recovery as such spouse’s share.
O.C.G.A § 51-4-2(d).
The other important aspect of this code section is the requirement that funds for minor children must be placed in trust held by a “guardian of the property” or a conservator. The code specifies:
[Any] recovery to which a minor child is entitled and which equals less than $15,000.00 shall be held by the natural guardian of the child, who shall hold and use such money for the benefit of the child and shall be accountable for same; and any such recovery to which a minor child is entitled and which equals $15,000.00 or more shall be held by a guardian of the property of such child. …
O.C.G.A § 51-4-2(d),
The topic of conservatorship will be explored at a different time, but the short answer is this: The funds are held in trust until the child reaches 18. Rarely, does a probate court allow the funds to be used for the child as the child grows up.
Sometimes, there is confusion when children are adopted, particularly when many adoptions are done informally. The place to find the answer is determining and finding the Adoption Order. An adoption order is entered in all formal court proceedings. In every adoption order, the judge legally transfers the parent-child relationship to the new adopted parents. The biological parents have absolutely no relationship and no legal rights. Thus, when a child is legally adopted, they have all rights and privileges in their new family and none in the biological parents. If there is no adoption order, and the child is “informally adopted”, that child has claims on their biological parents and the right to recover from the death of that parent.
Georgia statutory law clears up issues of recovery, and as a general rule, there is no conflict between parents, stepparents, and the children. To the attorneys that do not know how to handle these issues, I would encourage you to speak with a probate attorney before settling any cases. Or, in the alternative, call at the Krause Law Firm.
We are happy to help.