Your Guide to Suing For Wrongful Death In Georgia Civil Courts

how long after wrongful death car accident can you sue

The only immediate certainty when you lose someone to a sudden wrongful death is that life will never again be the same.

Suing for wrongful death in Georgia won’t change that fact. However, it can save you from drowning financially. It’s also a means holding responsible parties accountable for careless, reckless or intentional actions that resulted in a death.

Understandably, some families have mixed feelings about pursuing wrongful death litigation, knowing nothing can ever bring back the person they love. However, monetary damages are often the only means within the civil justice system to penalize the at-fault party or to “make whole” those who have suffered as a result.

What is a “Wrongful” Death?

A wrongful death claim is one for civil damages awarded to the survivors of those who died because of another’s negligent or criminal act.

“Negligence” is the failure to use reasonable care when one had a duty to do so. Although wrongful death cases are separate from criminal actions, they can stem from an act that also constitutes a crime.

Defendants in wrongful death cases can be another person or it may be a business.

The main difference in a wrongful death case versus a personal injury case is that it isn’t the person who was injured who files the claim but the family members or a person representing the estate of the deceased person.

Not All Deaths are Wrongful Deaths

An untimely death is a tragedy no matter what the cause. However, to be deemed actionable, it must be the result of either/ or:

  • This is a failure to use reasonable care when one has a duty to do so.
  • Intentional Acts. This is when a violent crime or extreme recklessness results in someone’s death.

The U.S. Centers for Disease Control and Prevention reports nearly 147,000 unintentional injury deaths annually. Not all are legally actionable, but the CDC identifies the top causes of death as:

  • Motor vehicle traffic accidents;
  • Falls; and,
  • Homicide.

Motor vehicle accidents are almost always the result of driver error and negligence of one or more motorists or sometimes vehicle manufacturers. It’s fair to say most Georgia wrongful death lawsuits stem from car accidents. Falls can be actionable if an individual or organization owed a duty of care to provide a safe environment or supervision (i.e., nursing homes, hospitals, construction sites, etc.). Similarly, homicides can be actionable in the civil justice system, either directly against the individual who caused intentional harm and/ or against an organization or business that breached a duty of care to protect the victim from the risk of foreseeable harm (often the basis of negligent security).

Your wrongful death lawyer should carefully examine all relevant facts in the case to ascertain whether strong evidence exists the death was due to negligence or an intentional act.

Suing for Wrongful Death in Georgia

Under the Georgia Code (O.C.G.A. 51-4-1 through 5), suing for wrongful death provides a way to compensate those closest to the victim for the value of the life lost in an accident or due to the reckless acts of another. Of course, no one can put a price tag on your relationship with a loved one, their contributions to your family and to society, or the heavy toll their loss takes on every area of your life.

What a family wrongful death claim can do is to provide compensation for some of the actual and estimated losses you are likely to suffer as the result of your loved one’s death, while making sure responsible parties are held accountable.

Who can file a wrongful death claim in Georgia?

OCGA § 51-4-2 governs who can bring a wrongful death claim in Georgia:

  • Surviving spouse. A spouse must also represent the interests of minor children. The law entitles spouse to not less than one-third of total recovery, regardless of number of children.
  • Surviving adult children (known as sui juris under the law) may bring a wrongful death claim in absence of a spouse.
  • Surviving parent of a deceased.
  • Personal representative of the estate of the deceased.

Other relatives, such as step- or half-siblings, aunts or uncles, cousins, or grandparents, typically cannot bring a wrongful death claim, unless they are named estate administrator for the deceased.

In some cases, a last will and testament is left by a decedent, which establishes an estate representative. If a victim dies without a will, it is considered an intestate estate. In this case, an estate administrator will be established by a probate judge, in accordance with Georgia laws governing intestate estates.

A family wrongful death claim can be extremely complex – from proving causation and establishing negligence to arguing for a full and fair damage award. Our dedicated, responsive team is prepared to fight for you.

Types of Wrongful Death Claims in Georgia

OCGA § 51-4 is where guidelines for Georgia wrongful death lawsuits are set forth. These provisions allow for two types of claims:

  • The full value of the life of the deceased as shown by the evidence (which, as outlined in the 2016 Georgia Court of Appeals ruling in Chrysler Group v. Walden, may include photos, videos and stories of loved ones). Such claims may include both economic damages (i.e., loss of decedent’s expected earnings, loss of the goods/ services decedent would have provided) and non-economic damages (pain and suffering).
  • An estate claim, which per OCGA § 53-2-1 allows the victim’s family to recover for his/ her pain and suffering, medical bills prior to death, funeral expenses and more. This is also where a plaintiff could pursue punitive damages (damages intended to punish the defendant, as opposed to merely compensate the plaintiff).

Your attorney can explain whether one or both options may be available, given the unique facts of your case.

Recoverable Damages in Georgia Wrongful Death Lawsuit

Georgia wrongful death claims are governed by OCGA § 51-4.

The law recognizes two types of claims:

A wrongful death claim by the family, which aims to take full measure under the law of the “full value of life” of a deceased:

  • Wages and benefits: This includes future earning capacity.
  • Loss of companionship: And other benefits a deceased provided to family members.

An estate claim brought by or on behalf of deceased person’s estate to recover estate losses resulting from a victim’s death, including:

  • Pain and suffering
  • Medical expenses
  • Funeral expenses
  • Punitive damages

Experienced Atlanta wrongful death attorneys will spend significant time and resources determining “full value of life” under Georgia law. Unlike some states, Georgia does not use a formula or cap in determining value of life. A recent case involving a tragic car accident and an automobile manufacturer accused of negligence highlights how suing for wrongful death can help to hold those at fault for your loved one’s death accountable.

Elements to Determining Full Value of Life

Economic Damages

Economists and other expert witnesses are often called upon to look at a decedent’s age and health, as well as his career and future value of labor performed.

Intangible Damages

Must also be carefully considered and calculated. Factors that may be considered include a decedent’s relationships, family circumstances and living conditions. This may include testimony of family and friends.

Life Expectancy

Georgia evidence code uses the Commissioners 1958 Standard Ordinary Mortality Table and the Annuity Mortality Table for 1949, Ultimate. These resources may be augmented with other evidence or witness testimony to determine how long a victim may have lived.

How Long After A Wrongful Death Can You Sue?

When someone you love dies suddenly, it can feel like your whole world has stopped. What’s only just begun, though, is the clock on the wrongful death claim, called the statute of limitations. Statute of limitations means how long you have to file a lawsuit; it does not have to be concluded, but it must be filed and diligently served upon the defendant(s).

Of course, a lawsuit isn’t the first thing anyone is thinking about in the wake of a crash death or if someone has been shot and killed or if the loved one died falling through a window or off a deck, but it is important to consult with a personal injury trial lawyer as soon as practical.  You need someone to advocate for the deceased.  Also, in Georgia, you only have two years after a wrongful death to sue.

“But why should I hire a lawyer and potentially bother suing? What good will that do?”

It’s true that a wrongful death lawsuit isn’t going to bring the person you love back. What it can do is:

  • Help provide closure to survivors after trauma and tragedy.
  • Hold accountable negligent parties (helping to ensure they don’t hurt anyone else).
  • Give survivors a chance to recover financial relief. Monetary damages help cover things like hospital bills, lost wages and funeral expenses. It can be a financial lifeline to the decedent’s surviving spouse and children. Damages can also be paid for things like pain and suffering, emotional distress and loss of consortium.

For these reasons, a wrongful death claim is at least worthy of consideration after a fatality. It’s understandable that survivors need time to make the decision, but it’s important to know that you don’t have an unlimited amount of time. If you miss the filing deadline, that door to justice may be forever closed. That’s why it’s better to contact an Atlanta wrongful death lawyer sooner than later.

Understanding Wrongful Death Statute of Limitations In Georgia

When you have lost someone close, filing a wrongful death lawsuit may not be your first thought. But the impact of one’s death can be more than just an emotional trauma. It’s often financial as well. For many, wrongful death claims also provide a means of accountability for careless, reckless, or even criminal acts, and can serve as a catalyst for meaningful change so that your loved one’s death is not in vain.

Under Georgia’s Wrongful Death Act, if an individual is killed as a result of the wrongful act of another person or party, then the family of the deceased individual has the right to bring a wrongful death claim.

The Wrongful Death Act establishes that the family of the individual who died can make a claim for “the full value of the life of the decedent.” O.C.G.A. § 51-4-2. In most cases, a wrongful death claim must be filed within two years of the victim’s death, although in certain circumstances it can be longer.

The “full value of the life” is measured from the point of view of the person who died.  Brock v. Wedincamp, 253 Ga. App. 275, 281-82 (2002). This has two parts: the intangible, which includes the decedent’s relationships, family, and reasons for living; and the tangible, which includes the money that the decedent would have earned and the value of any household jobs that the decedent handled.

If the person who died is survived by a husband or wife, then that spouse generally has the right to bring the wrongful death claim under Georgia law.  If there is no surviving spouse, then any surviving children may bring the claim.  If the person died without any spouse or children (for instance, if the decedent was a child), then the parents or an administrator can bring the wrongful death claim.

If you are thinking about filing a claim, it’s important to understand the wrongful death statute of limitations in Georgia.

A statute of limitations is a prescribed amount of time you have for bringing certain kinds of legal action.

In general, you have two years from the date of the person’s death in which to file a claim. That might sound like a fair amount of time but consider that wrongful death cases can be complex with sizable damages at stake. Plus, the sooner your attorney can start investigating your claim, the better your odds of preserving invaluable evidence, witness testimony, etc.

There is no rule that says you must wait the full two years to file. For example, in the July 2019 death of Atlanta toddler Anthony Charles Hicks III who died after topping out a window in a common area of his family’s Buckhead apartment, our wrongful death lawyers helped his parents to file a wrongful death claim within just six months.

However, there are many possible exceptions to the wrongful death statute of limitations in Georgia. These can lengthen or shorten the amount of time in which you may file. Our Atlanta wrongful death attorneys offer an overview here, but it’s important to consult with a lawyer about the specifics of your case to determine if an exception applies.

What Circumstances Might Extend – or Shorten – the Wrongful Death Statute of Limitations?

Although most wrongful death claims must be filed in two years, the circumstances that may alter the time frame include:

  • A criminal charge. As noted in O.C.G.A. § 9-3-99, the statute of limitations on wrongful death claims (or any tort action) may be “tolled” (extended) while any criminal prosecution arising from the incident is pending. That applies to all those accused of crimes connected to the incident, not just those who are named as defendants in the civil case. A plaintiff will then have two years from the time the criminal charge is resolved in which to file their claim.
  • An underage plaintiff. If the person with the right to sue for wrongful death has not yet turned 18 at the time of the death, he or she will have until they are 20 (or 2 years after their 18th birthday) in which to file.
  • An unrepresented estate of parties. According to O.C.G.A. § 9-3-92, if either a plaintiff or defendant in a case dies and his/her estate goes unrepresented (with no executor or administrator appointed), the statute of limitations can be tolled up to five years.
  • Claims against county governments. If you’re suing a county government agency for wrongful death, you still have two years in which to file a claim. However, you also need to give notice of that claim within 12 months. If the plaintiff is a minor, they have 12 months – instead of two years – after turning 18 in which to file.
  • Claims against cities. If you’re filing a claim for wrongful death against a city government agency, you need to send notice of claim within six months of the death. You still have two years in which to file the actual lawsuit.
  • Claims against state government entities. If you’re suing the state, you need to give notice of the claim within 12 months. This notice needs to be sent in writing, certified, and sent to the Risk Management Division of the Department of Administrative Services. Your attorney can draw up this notice for you and ensure you meet the proper requirements and deadlines.
  • Defendant leaves Georgia. If a defendant leaves the state, O.C.G.A. § 9-3-94 states that the time of that absence won’t be counted/estimated in his/her favor. In other words, the statute of limitations may be tolled until they return.

If you have questions about Georgia’s statute of limitations in wrongful death cases, our longtime Atlanta wrongful death attorneys are available with answers in a free initial consultation.

Georgia’s Estate Claim for Wrongful Death Statute of Limitations

In addition to a wrongful death claim, there can also be an estate claim. The statute of limitations is generally two years from the date of death plus the amount of time to set up the estate for the deceased.

The family of the deceased individual usually brings claims on behalf of the deceased’s estate, such as claims for the pain and suffering experienced by the decedent. Interestingly, there is no obligation to set up an estate and many times wrongful death claims are pursuit without also pursuing an estate claim.

Wrongful Death Claim

A wrongful death claim is created by statute. This claim is for the “full value of the life of the decedent” from the deceased’s eyes.  O.C.G.A.§ 51-4-2(a).  In Georgia, this means that a jury is asked to consider what this person’s life meant from the perspective of the person who diedBrock v. Wendicamp, 253 Ga. App. 275, 281 (2002).

The “full value of the life” has two parts.  First, it includes the “intangible” value of life.  This intangible component includes the parts of life that we value most, like spending time with family and friends, relaxing, having fun, exercising, raising children, love, playing sports, daily activities, volunteering, or life milestones like graduating from high school or having children.

Second, the “full value of the life” also includes “tangible” value.  Also called the “economic” value of a life, this component refers to the economic value of the things the decedent did.  The tangible value of a life includes the money that the decedent would likely have earned throughout his or her life as well as the economic value of things like mowing the yard, washing the dishes, taking out the trash, driving children around, or caring for older relatives.

Estate Claim

The other claim, called the estate claim, permits the family of the decedent to recover for the pain and suffering of the decedent, any medical bills incurred before death, funeral expenses, and a few other items.

In Georgia, any claim for punitive damages must also be brought by the estate.  If the decedent had a will, then the administrator named in the will must bring the estate claim.  If the decedent did not have a will, then Georgia’s laws of intestacy will determine who can bring the claim (O.C.G.A.§ 53-2-1 et seq.)

Wrongful Death Due to a Violent Crime or Traffic Violation

If the wrongful death car accident occurred due to a violation of Georgia law – be that a violent crime or a traffic violation – the law allows for the statute of limitations to be “tolled” (in other words, the clock is paused) pending the outcome of the criminal case.

Neither criminal intent nor criminal negligence is required to trigger the tolling statute, which means any wrongful death lawsuit involving a car accident in which the at-fault driver was also charged with a crime or traffic violation could be tolled until either the final disposition of that criminal case OR six years, whichever time frame is shorter. The two-year statute of limitations would begin running from that point. Theoretically, this means one might have up to eight years to file.

Other reasons for which a statute of limitation might be tolled in a car accident case:

  • One is imprisoned or disabled when the cause of action arises.
  • The decedent’s estate is unrepresented (up to five years).
  • A person is a minor when the cause of action accrues.

Because all of this is heavily dependent on the circumstances of your case, it’s not a good idea to wait to talk to a lawyer.

Whether You Intend to File a Lawsuit or Not, You Should Confer with a Lawyer who has Experience with Wrongful Death Cases

Losing a loved one is a terrible experience, but you should look for a lawyer to guide you through the process.  The right lawyer will explain your options and will help guide you through everything from how to handle medical bills to whether to file a lawsuit.  Even if you’re positive you have plenty of time to hire a lawyer, know that there are several practical reasons not to wait very long. These include:

  • Preservation of evidence. Some kinds of evidence, such as red-light camera footage, accident scene photos, or business surveillance recordings, could be lost forever if you don’t act very quickly. The more time goes by, the tougher it will be to locate witnesses or have credible witnesses who can remember what happened with confidence and clarity.
  • Avoiding mistakes. There are sometimes missteps people make – particularly when their judgment is clouded by grief – that could hurt their chances of obtaining just compensation. A good example is giving a recorded statement to insurance adjusters or signing off one a blanket medical records authorization. When you hire a wrongful death lawyer, we handle all of that for you and offer sound legal advice.
  • Insurer negotiations. You may not even have to file a wrongful death lawsuit if you can successfully negotiate with an insurer. But research has proven you’re much more likely to obtain fair compensation from the insurer when you’ve got an experienced injury lawyer working on your behalf – someone who knows the law and what your case is worth.

If your loved one has died and you think it was a wrongful death, our Atlanta wrongful death attorneys can help you determine how quickly you must act to pursue a claim.

The foregoing answers are not legal advice and are merely a general overview. You are advised to consult a lawyer to address your specific situation. For more information or to inquire about a free consultation, contact Stephen D. Apolinsky, an experienced Atlanta injury attorney, at Apolinsky & Associates at (404) 377-9191 or email him at

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About the Author

Stephen Apolinsky

Stephen D. Apolinsky is a Personal Injury Attorney who specializes in representing individuals and families concerning wrongful death and catastrophic injury cases. Stephen is licensed to practice in Georgia, Alabama, and the District of Columbia. With over 33 years of experience representing personal injury victims, Stephen has successfully tried over 80 cases to verdict before judges or juries, and has negotiated over 300 cases to out-of-court settlements. Stephen has been recognized as a Georgia Super Lawyer, and as a Top 100 Trial Lawyer by the National Trial Lawyers Association.