Wrongful Death FAQ

Wrongful Death FAQ

What Is A Wrongful Death Claim?

Answer: If a negligent person, company, or government agency killed someone that you love, you may be able to file a wrongful death claim against them. Wrongful death claims enable surviving family members to recover monetary damages equivalent to the “full value” of the decedent’s life.

Wrongful death claims typically arise from fatal injuries caused by motor vehicle accidents, dangerous roadways, medical malpractice, and shooting incidents at businesses, hotels, and apartment complexes.

A government prosecutor will file homicide or manslaughter charges against the person that killed your loved one if the misconduct was intentional. The prosecutor must prove those charges “beyond a reasonable doubt.” If the prosecutor successfully proves those charges, the judge will sentence the defendant by imprisoning them. The judge may also impose monetary fines.

In most cases, wrongful death claims are the result of negligent (unintentional) acts. In those cases, the prosecutor won’t file criminal charges against the defendant. However, the decedent’s surviving family members can still sue to recover monetary damages from the tortfeasor. At trial, the surviving family members must prove their claim by a “preponderance of evidence” standard. That is a much lower evidentiary standard than the “beyond a reasonable doubt” criminal evidentiary standard. Simply put, in a civil case, the surviving family members need only demonstrate that the careless tortfeasor “more likely than not” killed the decedent.

Contact an Atlanta wrongful death lawyer today if a negligent person, company, or government agency killed someone that you love.

What If The Decedent Was Partially At Fault?

Answer: In some wrongful death cases, the decedent was partially responsible for causing their death. The decedent’s surviving family members can still recover damages as long as the decedent was not 50% (or more) at fault.

For instance, our law firm recently settled a wrongful death claim arising from an auto accident for the maximum insurance coverage even though our client exceeded the speed limit by 30 miles an hour when she entered a dangerous S-shaped curve.

In that case, our accident reconstructionist demonstrated that the defendant was also speeding when she entered the S-shaped curve from the opposite direction. Also, our accident reconstructionist demonstrated that the county was partially at fault for not trimming the roadside vegetation that obscured the drivers’ sight lines.

Even though the county was protected by Georgia’s sovereign immunity law, Georgia’s apportionment statute O.C.G.A. § 51-12-33 contemplates the fault of every tortfeasor, regardless of whether it has an affirmative defense or claim of immunity. Zaldivar v. Prickett et al., 297 Ga. 589, 597 (2015).

To summarize, our Atlanta wrongful death lawyers proved that the decedent, the defendant, and the county were each 33.33% at fault. Our client’s damages were reduced by the decedent’s 33.33% fault share. But, our clients were still able to recover a policy limit settlement. Why? Because the damages vastly exceeded the available insurance coverage.

Who Can File A Wrongful Death Claim?

Decedent’s Spouse

O.C.G.A. § 51-4-2(a) authorizes the decedent’s surviving spouse to pursue a wrongful death claim. If the decedent also left surviving children, then the surviving spouse must share the claim award with the children. O.C.G.A. § 51-4-2(d)(1).

Even though the surviving spouse must split the claim award with the children, the spouse can never receive less than one-third of the award, no matter how many children there are. O.C.G.A. § 51-4-2(d)(2).

Decedent’s Children

The decedent’s child, or children, may file the wrongful death claim if the decedent died without a spouse, or the decedent was divorced. O.C.G.A. § 51-4-2(a). Children born out of wedlock may also share the recovery. O.C.G.A. § 51-4-2(f).

Decedent’s Parents

The decedent’s parents may bring the wrongful death claim if the decedent died without a spouse or children. If the parents are married, they can jointly pursue the claim. If the parents are separated, either parent may file the claim. The parents must jointly split the wrongful death recovery proceeds.

Decedent’s Estate

The decedent’s estate may pursue the wrongful death claim if the decedent died without a spouse, children, or living parents.

How Is Wrongful Death Compensation Calculated in Georgia?

Answer: Wrongful death compensation in Georgia has two components:

1. The intangible value of the decedent’s life to the decedent. (E.g., the decedent’s family, social and work relationships; the decedent’s favorite hobbies; the decedent’s personal goals and dreams, etc.).

2. The tangible income that the decedent would have earned if the decedent had reached their average life expectancy. (E.g., wages, benefits, investments), as well as the value of the decedent’s household services (e.g. childcare, chores, etc.).

Contact an Atlanta wrongful death lawyer if you have questions about the potential types of damages you may recover.

What Is An Estate Claim?

Answer: The administrator of the decedent’s estate can file an “estate claim” to recover funeral expenses, medical bills and pre-death pain and suffering damages.

If the decedent died testate (with a will), the will typically specifies who will serve as the estate administrator. If the decedent died intestate (without a will), one of the decedent’s surviving family members will typically get appointed as estate administrator by the probate court.

In many cases, the estate claim is not as valuable as the wrongful death claim. For instance, if the decedent died instantaneously, the decedent likely did not experience any pre-death pain and suffering. They also likely did not incur any medical bills. In that scenario, the value of the estate claim would likely be limited to the funeral expenses.

However, sometimes the estate claim is just as valuable, or even more valuable, than the wrongful death claim. For instance, if the decedent died a slow and painful death, the pre-death pain and suffering claim would be huge. If the decedent was hospitalized for an extensive time period before death, the decedent’s medical bills may exceed one-million dollars.

How Do I Protect the Wrongful Death Settlement Proceeds from Estate Creditors?

Answer: O.C.G.A. § 51-4-2(e) provides that no wrongful death recovery shall be subject to any debt or liability of the decedent. However, if any portion of the recovery is allocated to the estate’s claim, the estate creditors may file a claim against that portion.

Once the creditors file their claims, the estate claim proceeds will be distributed to the creditors based upon the statutory hierarchy set forth in O.C.G.A. § 53-7-40(a). However, the decedent’s family shall first be entitled to a year’s support from those proceeds. Additionally, the estate’s funeral expenses will have priority over all remaining creditor claims.

It is generally a good idea to allocate all of the settlement proceeds to the wrongful death claim and none of the settlement proceeds to the estate claim. That way, the estate’s creditors won’t be able to seize any portion of the recovery. However, that strategy isn’t always feasible. For instance, sometimes the estate incurs substantial funeral expenses that it wants reimbursed. In other cases, the estate claim is far more valuable than the wrongful death claim. If so, a substantial portion of the recovery must be allocated to the estate claim.

An Atlanta wrongful death lawyer will help your protect your settlement from estate creditors.

How Long Does a Family Have to File A Wrongful Death Claim in Georgia?

Answer: There is a two-year statute of limitations (SOL) to file a wrongful death lawsuit in Georgia. That SOL generally begins to run once the decedent passes away. However, that deadline can be longer, or shorter depending upon the circumstances of the case. Contact an Atlanta wrongful death lawyer to determine the SOL deadline applicable to your case.

If your loved one died from a motor vehicle collision, the statute of limitations is tolled from the date of the collision until the defendant’s traffic citation is resolved, or six years, whichever date is sooner.

If your loved one died because of a county employee’s misconduct (e.g., police officer abuse) you only have six months to file your claim.

You only have twelve months to file a wrongful death claim if your loved one died due to a state employee’s misconduct.

How Long Does It Take To Resolve a Wrongful Death Claim in Georgia?

Answer: There are many factors that influence the resolution timeline of a wrongful death claim .

The family members will need to hire a wrongful death lawyer to set-up the estate if they want to pursue an estate claim. That process could take several months if the probate court has a large backlog of cases.

If the surviving family members only want to pursue a wrongful death claim, the process will generally go faster. However, if the decedent died with minor children, but without a spouse, the probate court will need to appoint a conservator to represent the minor children. The conservator might be one of the decedent’s family members over the age of 18, or a professional conservator.

While the probate process is underway, the lawyer for the surviving family members will begin to collect evidence that they need to prove the case. That evidence may include medical records and bills, surveillance footage, witness statements, accident scene diagrams, etc. The lawyer may also hire experts, such as an accident reconstructionist and an economist. The investigation process typically takes anywhere from 3 months to 9 months depending upon the case complexity.

Once the investigation process and the probate process are completed, your lawyer will typically attempt to settle your claim with the negligent person’s insurance carrier. If there is relatively limited insurance coverage, the case may be settled at that point. If there is substantial insurance coverage, the insurance carrier will usually make a low-ball settlement offer and force you to sue them to get the compensation that you deserve. The litigation process typically takes 1-2 years, at a minimum before a wrongful death lawsuit is resolved.

"When I felt all hope was lost, I contacted Graham Scofield to see if he could represent me. He immediately called me back and thoroughly reviewed with me the case. He was the most patient, kind, sympathetic and the upmost professional attorney throughout the entire process. He was also extremely knowledgeable about the law and was creative when the case worked through the twists and turns. He was also a heck of a fighter for me and got me more settlement than I was expecting. I only wish I called him sooner! Thank you so much Graham, you are an amazing lawyer!!"
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