Who Can File a Wrongful Death Lawsuit in Georgia?
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The surviving spouse first; if there is no spouse, the deceased person’s children, minor or adult (O.C.G.A. § 51-4-2(a)). When the person who died left no spouse or child, the parents (§ 51-4-4 and § 19-7-1(c)). When none of them exists, the estate’s administrator or executor, who sues for the next of kin (§ 51-4-5). Siblings, grandparents, and other relatives cannot file in their own names.
The order, in one table
| Situation | Who files | Who shares the recovery | Statute |
|---|---|---|---|
| Spouse survives | Surviving spouse | Spouse and children, equally, spouse never less than one-third | § 51-4-2(a), (d) |
| No spouse; children survive | Child or children, "either minor or sui juris" | Children equally; descendants of a deceased child take that child's share | § 51-4-2(a), (d) |
| Deceased left no spouse or child | Parent or parents | Parents, divided as § 19-7-1(c) provides | § 51-4-4; § 19-7-1(c)(2) |
| None of the above | Administrator or executor | The next of kin, identified under the inheritance laws (Stewart v. Bourn, 2001) | § 51-4-5(a) |
The rules are applied as written. Georgia’s courts treat the Wrongful Death Act as a statute in derogation of the common law, so its language “can never be extended beyond its plain and ordinary meaning”, as the Court of Appeals quoted the Supreme Court in Stewart v. Bourn.
When the person who died was someone’s child
Section 51-4-4 sends the death of a child, “minor or sui juris”, to § 19-7-1. If the child left no spouse or child, the right belongs to the parents:
- jointly, if they are living together and not divorced;
- to the surviving parent, if one parent has died; and
- to both, if they are divorced, separated, or living apart. If one parent “refuses to proceed or cannot be located”, the other may hire counsel and proceed on behalf of both, and the recovery is divided equally unless the court orders otherwise.
Section 19-7-1(c)(1) also provides that “in every case of the homicide of a child, minor or sui juris, there shall be some party entitled to recover the full value of the life of the child”, and that for an unborn child the right begins when a detectable human heartbeat is present.
The surviving spouse’s role
A spouse who files when there are children files for the whole family. The spouse can settle without the children’s agreement and “without any order of court”, but must hold the money subject to the statutory division and “be accountable for same” (§ 51-4-2(c)). The Court of Appeals has described the spouse’s duty to the children as a duty “to act prudently in asserting, prosecuting and settling the claim and to act in the utmost good faith” (Home Insurance Co. v. Wynn, 1997). How the children’s shares are protected is explained in what protects minor children’s shares when a spouse settles.
If the spouse dies while the case is pending, it passes to the children; if a child-plaintiff dies, it passes to the surviving children (§ 51-4-2(b)(1), (2)).
When the estate files
The administrator or executor files only when nobody listed above can (§ 51-4-5(a)), and the recovery is held “for the benefit of the next of kin”, not as an estate asset; see wrongful death claims with no close survivors. Separately, the estate always holds its own claims: the person’s pre-death pain and suffering (§ 9-2-41) and, when the death resulted from a crime or negligence, funeral, medical, and other necessary expenses (§ 51-4-5(b)). Those are different claims from the family’s wrongful death action; see wrongful death versus the estate’s claim.
Children born outside marriage
Birth out of wedlock does not bar a child’s recovery, provided the child “had rights of inheritance from or through the child’s deceased parent under Code Section 53-2-3” (§ 51-4-2(f), as amended by HB 327 in 2025).
Sources
- O.C.G.A. §§ 9-2-41, 19-7-1, 51-4-2, 51-4-4, 51-4-5, 53-2-3.
- Stewart v. Bourn, 250 Ga. App. 755 (2001)
- Home Insurance Co. v. Wynn, 229 Ga. App. 220 (1997)
General information about Georgia law as of October 2026. It is not legal advice, and reading it does not create an attorney-client relationship.