- Whether parents can receive compensation for the wrongful death of their adult child depends on factors such as the child’s marital status, whether their child has children of their own, and the type of relationship the parent has with their adult child.
- Under Georgia law, parents generally may file a wrongful death claim if their child had no spouse or children.
- A parent can be disqualified from receiving compensation if they abandoned the child, failed to support them, gave up their parental rights, or were estranged from them.
Few events are more devastating than suddenly losing a child in a car accident caused by a negligent or reckless driver. Though money cannot truly make up for the loss, holding the at-fault driver accountable for their actions can provide solace and help ease the financial burden for the victim’s family. Because of the catastrophic nature of the loss, compensation for fatal car accidents can involve many thousands, if not millions, of dollars.
Typically, parents can recover compensation if their minor child passes away in an accident, but they may wonder if they are still eligible for a settlement if their child is an adult. The answer is not clear cut and depends on factors such as the adult child’s marital status, whether their child has children of their own, and the type of relationship the parent has with their adult child.
Who Has Priority for Wrongful Death Compensation?
When a loved one dies because of someone else’s careless or reckless behavior, their survivors may have a legal claim against the person or entity responsible for the full value of the victim’s life. This type of claim is for wrongful death, and it is similar to a personal injury claim except that it is brought by the victim’s family or estate rather than the victim. O.C.G.A. § 51-4-1.
Not all surviving family members are entitled to wrongful death compensation. Georgia has laws that determine who can file a claim and recover compensation based on a specific relationship hierarchy. Under Georgia’s wrongful death statute, the surviving spouse has the highest priority and is entitled to file a legal claim for recovery. O.C.G.A. § 51-4-2. Note that a girlfriend/boyfriend or an ex-spouse does not have any legal rights under this statute.
If there is a surviving spouse, they are the only one who can file a wrongful death claim, though they are required to share the compensation awarded with any surviving children. Note that even though they must share the damages with the children, the spouse can never receive less than one-third of the recovery regardless of how many children there are. O.C.G.A. 51-4-2(d)(2). That means the children would share two-thirds of the award equally if there are two or more children.
If the victim had no spouse, then the right to file a wrongful death claim lies with the surviving children (whether the children are minors or adults). If one of the victim’s children is deceased, the deceased child’s heirs have the right to their parent’s share of the recovery. For example, if a victim who had two living children and one deceased child was killed in a car accident, any children of the deceased child (i.e., the victim’s grandchildren) are entitled to their parent’s share.
If the surviving children are under 18, a guardian or representative must file the claim on their behalf, and all compensation belongs to the children. Note that the law gives this right to biological children and those who were legally adopted—stepchildren may not recover unless they were adopted by the victim.
When the victim had no spouse or children, the victim’s parents are entitled to bring a wrongful death claim and recover compensation for the loss of their child. O.C.G.A. 19-7-1(c)(2). If the victim had a spouse or children, the parents have no wrongful death claim and may not receive any compensation from the spouse’s (or children’s) award.
Other relatives, such as siblings, grandparents, nieces, and nephews may not file a wrongful death claim even if there are no surviving parents, children, or spouse. Instead, the legal claim must be filed by the administrator or executor of the victim’s estate, and whatever compensation recovered is awarded to the victim’s “next of kin.” O.C.G.A. § 51-4-5(a).
Who Receives Compensation if the Claim is Filed by the Victim’s Estate?
If the claim is brought by the victim’s estate, Georgia laws governing inheritance determine who is given priority for compensation among the remaining family members, or next of kin, if there is no will in place. In Georgia, the hierarchy for inheritance is the following:
- If there are no children, only the surviving spouse,
- If there are children, the spouse and children, as well as the children of any child who died before the decedent,
- The parents if there is no spouse, child, or descendant of the deceased child,
- If no spouse, children, descendants of children, or parents are surviving, the brothers and sisters of the decedent and the descendants of any deceased sibling,
- If none of the above were living at the time of the decedent’s death, the decedent’s grandparents,
- If none of the above were living at the time of the decedent’s death, uncles and aunts and their descendants,
- If all uncles and aunts are deceased, then first cousins share equally.
The more remote degrees of kinship are determined by a mathematical formula involving the relative in question and the closest common ancestor. O.C.G.A. § 53-2-1.
How Does an Accident Victim’s Will Come into Play?
A death claim brought by the victim’s estate, known as an estate claim, is filed by the administrator of the estate, and the administrator may file a claim regardless of whether the victim had a will in place. If the accident victim had a legally valid will in place at the time of their death, the terms of the will—rather than the statutory rules of inheritance— may determine who can recover from the victim’s estate.
Often, the administrator of the estate is the spouse, adult child, or parent of the deceased, which means the administrator also has the right to file a wrongful death claim individually. However, if the deceased victim’s will prioritizes another beneficiary over the surviving spouse and children, it becomes more complicated.
Under Georgia law, the surviving spouse still has the statutory right to file a wrongful death claim even if they are not named as a beneficiary in the victim’s will. The same is true if there is no spouse but there are surviving children. If the victim had no spouse or children, the parents also retain the right to file a wrongful death claim. In other words, the right to file a wrongful death claim is separate from the right to recover from the estate, and the terms of the will cannot take away the right to file a claim under O.C.G.A. § 51-4-2.
For example, if the victim prioritized their parents in the will over their spouse, the spouse may still file a wrongful death claim and recover compensation. The parents may still receive some compensation as beneficiaries of the estate, but their claim would have to be brought separately by the estate’s administrator.
Similarly, if the victim prioritized a girlfriend/boyfriend or other nonfamily member in their will, the parent(s) can still file a wrongful death claim for the loss of their child, assuming there is no spouse or children.
How Are Divorced Parents Compensated?
In situations where there is no spouse or child to bring a wrongful death claim, the victim’s parents are entitled to recover compensation. If the parents are still married and living together, they share the compensation equally. O.C.G.A. 19-7-1(c)(2). If only one parent is still living, that parent receives all the compensation.
When parents are divorced or separated, both may file a claim, and if there is a dispute regarding whether the proceeds should be divided equally, or if no alternative distribution is agreed upon, a court may apportion the compensation “fairly” between the parents. When deciding how to apportion compensation, the court considers each parent’s relationship with the child. A parent can be disqualified from receiving compensation, or their share may be reduced, if they abandoned the child, failed to support them, gave up their parental rights, or were estranged from them.
Note that a stepparent or other caregiver has no wrongful death claim unless they adopted the child. A court-appointed guardian can file a claim if the child is a minor and there is no surviving parent, but they may not recover for an adult child unless they are a beneficiary to the victim’s estate.
Those Who Qualify for Compensation Must File the Legal Claim
Typically, a representative of the deceased must file a legal claim to recover compensation for the death—the at-fault party’s insurance company will not usually voluntarily offer compensation if nobody files a claim.
To recover, it is the responsibility of the surviving spouse, children (or representative of the children if they are minors), or parents to file a wrongful death claim if they qualify for compensation. If someone else qualifies, they can only receive compensation after the administrator of the victim’s estate files a claim. They cannot file a wrongful death claim on their own behalf under Georgia law, though in some circumstances they may qualify receive compensation as a beneficiary of the estate.
If you believe you may be eligible for compensation for a loved one’s wrongful death, you should speak to an experienced attorney about your rights and options. Our attorneys have 30 years of experience handling wrongful death claims, and we can help identify who qualifies for compensation.
