2021 Georgia Code
Title 51 - Torts
Chapter 4 - Wrongful Death
§ 51-4-2. Persons Entitled to Bring Action for Wrongful Death of Spouse or Parent; Survival of Action; Release of Wrongdoer; Disposition of Recovery; Exemption From Liability for Decedent's Debts; Recovery Not Barred When Child Born Out of Wedlock

1. The surviving spouse or, if there is no surviving spouse, a child or children, either minor or sui juris, may recover for the homicide of the spouse or parent the full value of the life of the decedent, as shown by the evidence.
2. 1. If an action for wrongful death is brought by a surviving spouse under subsection (a) of this Code section and the surviving spouse dies pending the action, the action shall survive to the child or children of the decedent.
   2. If an action for wrongful death is brought by a child or children under subsection (a) of this Code section and one of the children dies pending the action, the action shall survive to the surviving child or children.
3. The surviving spouse may release the alleged wrongdoer without the concurrence of the child or children or any representative thereof and without any order of court, provided that such spouse shall hold the consideration for such release subject to subsection (d) of this Code section.
4. 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, provided that any such 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.
   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.
5. No recovery had under subsection (a) of this Code section shall be subject to any debt or liability of the decedent.
6. In actions for recovery under this Code section, the fact that a child has been born out of wedlock shall be no bar to recovery.

(Laws 1850, Cobb's 1851 Digest, p. 476; Ga. L. 1855-56, p. 154, § 4; Code 1863, § 2913; Code 1868, § 2920; Code 1873, § 2971; Ga. L. 1878-79, p. 59, §§ 1, 2; Code 1882, § 2971; Ga. L. 1887, p. 43, § 1; Civil Code 1895, §§ 3828, 3829; Civil Code 1910, §§ 4424, 4425; Ga. L. 1924, p. 60, §§ 1, 2; Code 1933, §§ 105-1302, 105-1303, 105-1304, 105-1305; Ga. L. 1973, p. 488, § 1; Ga. L. 1985, p. 1253, § 1; Ga. L. 1986, p. 10, § 51; Ga. L. 1988, p. 1720, § 17; Ga. L. 1993, p. 1055, § 1; Ga. L. 1998, p. 605, § 1.)

- Ga. L. 1998, p. 605, § 2, not codified by the General Assembly, provided that the Act shall be applicable to all wrongful death actions arising on or after July 1, 1998.

- For annual survey of law of wills, trusts, and administration of estates, see 38 Mercer L. Rev. 417 (1986). For article, "What's a Human Life Really Worth? Recovering Damages for Decedents' Non-Economic Losses in Georgia Wrongful Death Actions," see 7 Ga. St. U.L. Rev. 439 (1991). For annual survey article discussing trial practice and procedure, see 52 Mercer L. Rev. 447 (2000). For annual survey on appellate practice and procedure, see 61 Mercer L. Rev. 31 (2009). For note advocating consistency of inheritance and wrongful death rights with adopted child's new legal status, see 23 Mercer L. Rev. 1003 (1972). For note, "Standing to Sue for Wrongful Death in Georgia When a Spouse and Children Survive the Tortious Death: Mack v. Moore," see 3 Ga. St. U.L. Rev. 281 (1987). For note on 1993 amendment of this Code section, see 10 Ga. St. U.L. Rev. 233 (1993). For comment on Bloodworth v. Jones, 191 Ga. 193, 11 S.E.2d 658 (1940), see 3 Ga. B. J. 65 (1941). For comment on Odom v. Atlantic & W.P.R.R., 78 Ga. App. 477, 51 S.E.2d 466 (1949), see 12 Ga. B. J. 76 (1949). For comment advocating recognition in Georgia of the rights of illegitimate children to recover for wrongful death of father, in light of Armijo v. Wesselius, 73 Wash. 2d 716, 440 P.2d 471 (1968), see 20 Mercer L. Rev. 469 (1969).

ANALYSIS

• General Consideration
• Procedure
• Wrongful Death of Spouse
• Wrongful death of child
• Stepparents
• Decisions Under Former § 51-4-3

RESEARCH REFERENCES

Am. Jur. 2d.

- 22A Am. Jur. 2d, Death, §§ 72 et seq., 274 et seq.

41 Am. Jur. 2d, Husband and Wife, § 196 et seq, 242.

- 25A C.J.S., Death, §§ 23, 74 et seq., 124 et seq.

- Damages for wrongful death of spouse as affected by personal relations of the spouses, or the marital misconduct of either spouse, 18 A.L.R. 1409; 90 A.L.R. 920.

Recovery under common law or state death statute where cause of action under Federal Employers' Liability Act fails for want of proof that deceased or injured person was an employee of defendant, 66 A.L.R. 429.

Right to maintain death action where sole beneficiary of recovery is wife of defendant, 96 A.L.R. 479.

Effect of existence of nearer related but nondependent member upon right to sue under death statute in behalf of more remotely related but dependent member of same class, 162 A.L.R. 704.

Common-law recovery of funeral expenses from tort-feasor by husband, wife, or other relative of deceased, 3 A.L.R.2d 932.

Action against spouse or estate for causing death of other spouse, 28 A.L.R.2d 662.

Child adopted by another as beneficiary of action or settlement for wrongful death of natural parent, 67 A.L.R.2d 745.

Right of recovery, under wrongful death statute, for benefit of illegitimate child or children of decedent, 72 A.L.R.2d 1235.

Admissibility, in wrongful death action brought for benefit of minor children, of evidence of decedent's desertion, nonsupport, abandonment, or the like, of said children, 79 A.L.R.2d 819.

Remarriage of surviving spouse, or possibility thereof, as affecting action for wrongful death of deceased spouse, 87 A.L.R.2d 252; 88 A.L.R.3d 926.

Action for death of adoptive parent, by or for benefit of adopted or equitably adopted child, 94 A.L.R.2d 1237; 97 A.L.R.3d 347.

Wife's right of action for loss of consortium, 36 A.L.R.3d 900.

Death action by or in favor of parent against unemancipated child, 62 A.L.R.3d 1299.

Action for death of stepparent by or for benefit of stepchild, 68 A.L.R.3d 1220.

Right of spouse to maintain action for wrongful death as affected by fact that injury resulting in death occurred before marriage, 69 A.L.R.3d 1046.

Right of illegitimate child, after Levy v. Louisiana, to recover under state wrongful death statute for death of putative father, 78 A.L.R.3d 1230.

Minority of surviving children as tolling limitation period in state wrongful death action, 85 A.L.R.3d 162.

Action against parent by or on behalf of unemancipated minor child for wrongful death of other parent, 87 A.L.R.3d 849.

Admissibility of evidence of, or propriety of comment as to, plaintiff spouse's remarriage, or possibility thereof, in action for damages for death of other spouse, 88 A.L.R.3d 926.

Effect of death of beneficiary upon right of action under death statute, 13 A.L.R.4th 1060.

Excessiveness or inadequacy of damages awarded for personal injuries resulting in death of homemaker, 47 A.L.R.4th 100.

Excessiveness or inadequacy of damages awarded for personal injuries resulting in death of persons engaged in trades and manual occupations, 47 A.L.R.4th 134.

Excessiveness or adequacy of damages awarded for noneconomic loss caused by personal injury or death of parent, 61 A.L.R.4th 251.

Excessiveness or adequacy of damages awarded for noneconomic loss caused by personal injury or death of spouse, 61 A.L.R.4th 309.

Effect of death of beneficiary, following wrongful death, upon damages, 73 A.L.R.4th 441.

Admissibility of evidence, in action for personal injury or death, of injured party's use of intoxicants or illegal drugs on issue of life expectancy, 86 A.L.R.4th 1135.

Fraudulent concealment of cause of action for wrongful death as affecting period of limitations, 88 A.L.R.4th 851.

Action by or on behalf of minor child, or presumed minor child, for loss of parental consortium - impact of other legal concepts and theories of recovery, 6 A.L.R.7th 4.

Action by or on behalf of minor child, or presumed minor child, for loss of parental consortium - proof, evidentiary considerations, limits of recovery, parties, 5 A.L.R.7th 4.

Action by or on behalf of minor child, or presumed minor child, for loss of parental consortium - general considerations, 4 A.L.R.7th 1.