When a Criminal Case and Wrongful Death Lawsuit Overlap in Georgia

When someone causes a death through a crime, two separate legal cases can follow. The State of Georgia prosecutes the crime, and the family brings a civil wrongful death lawsuit.

They are not the same case, and one does not decide the other. The prosecutor does not represent your family, and a criminal verdict does not control whether your civil claim succeeds.

Georgia law recognizes this directly. O.C.G.A. § 51-4-1 defines “homicide” for wrongful death purposes to include every case where death results from a crime, from criminal or other negligence, or from defectively manufactured property.

Although the two proceedings are separate, the criminal case can still affect the evidence available and how the civil case moves forward. This guide explains how the cases may interact, how different criminal outcomes can affect a wrongful death lawsuit, and why families should protect their civil claim while charges are pending.

If a criminal case is already underway and your family is trying to understand the civil side, speak with an Augusta wrongful death lawyer about protecting the claim while the prosecution moves forward.

Two Cases, Two Purposes, Two Different Parties

A criminal prosecution is brought by the State. The district attorney files the charges, controls the case, and decides whether to offer a plea.

The purpose is punishment — prison, probation, fines. The family is a witness and a victim, not a party, and cannot dismiss or settle the case.

Georgia law gives the claim to specific statutory plaintiffs. Generally, the surviving spouse brings the claim and represents any surviving children. If there is no spouse, children or qualifying descendants may bring it. Depending on who survives, the claim may instead belong to the parents or the decedent’s personal representative.

The purpose is compensation. The family controls the case, chooses the attorney, and owns any recovery.

The same overlap can arise in fatal drug cases, where criminal charges against a dealer or other responsible party may proceed alongside a separate wrongful death lawsuit involving a drug overdose.

The two cases differ in every practical respect:

• Who brings it: The State brings the criminal case; the statutory survivors bring the civil case.
• What is at stake: Liberty in one, money in the other.
• Burden of proof: Beyond a reasonable doubt versus preponderance of the evidence.
• Who receives the outcome: A criminal fine goes to the government; a civil recovery goes to the family.

Do You Have to Wait for the Criminal Case to End?

No. Georgia does not require a family to wait for a prosecution to conclude before filing a civil wrongful death action.

Nothing in the Wrongful Death Act conditions the civil claim on a charge, a conviction, or even an arrest. A family may file when no one is ever charged at all.

That said, filing early and moving fast are two different things. A civil case filed while charges are pending often slows down, for reasons we explain below.

There are still real advantages to involving an Augusta wrongful death attorney early even if the filing waits:

• Evidence disappears. Vehicles get repaired or scrapped, surveillance video is overwritten, and witnesses move.
• Insurance coverage has to be found. Identifying every applicable policy often requires formal discovery.
• Notice deadlines run independently. If a government entity is involved, ante litem notice can come due long before the prosecution ends.

How O.C.G.A. § 9-3-99 Can Extend Your Filing Deadline

Georgia’s general deadline for a wrongful death claim is two years from the date of death under O.C.G.A. § 9-3-33.

Families should not assume that a pending criminal prosecution pauses this deadline. Georgia courts have held that § 9-3-99 does not toll certain statutory survivors’ wrongful-death claims, although related estate claims may require a separate analysis.

The pause runs from the date of the crime until the prosecution “has become final or otherwise terminated.” There is a ceiling: the tolled time cannot exceed six years.

That is a pause, not a reset. Once the prosecution ends, the remaining limitation period resumes running.

Two points deserve emphasis. First, the six-year cap is absolute — a prosecution that drags on for eight years does not buy eight years of tolling.

Second, courts examine whether the statute applies to the specific claim and claimant in front of them. Georgia decisions have addressed the reach of § 9-3-99 in different contexts, so tolling is never a safe reason to delay.

Our advice is consistent: treat the two-year deadline as the real one. Tolling is a backstop for families who came to counsel late, not a planning tool.

There is a second reason for that, and it has nothing to do with the statute. Tolling may extend the time to file, but it preserves none of the proof.

Records get purged, video is overwritten, and witnesses move and forget. The decaying evidence is the real clock, and it runs while everyone waits.

Deadlines end cases that would otherwise have been won. Call (706) 539-5191 or reach us through our contact page so the timing can be reviewed against your specific facts.

Motions to Stay: Why the Civil Case May Be Paused

A stay is a court order pausing a case, in whole or in part. When a prosecution and a civil suit arise from the same conduct, either side may ask the civil judge for one.

The reason is almost always the Fifth Amendment. A defendant facing charges has the right to refuse to answer questions that might incriminate them.

Here is the practical problem. In civil discovery that defendant would normally sit for a deposition and answer questions under oath about exactly what the prosecution concerns.

If they answer, the testimony can be used against them in the criminal case. If they refuse, that refusal can carry consequences on the civil side, and how a court treats it depends on the circumstances.

So the defendant asks the civil court to wait. Georgia trial courts have discretion to grant a stay, weighing factors such as the overlap between the cases, the burden on the parties, and prejudice to the plaintiff from delay.

Sometimes the family’s side wants a pause too:

• The criminal investigation does the work. Law enforcement has subpoena power, crime lab access, and reconstruction resources the civil case would otherwise pay for.
• A conviction strengthens the civil case. Waiting can strengthen the liability evidence, though a conviction does not resolve liability on its own.
• The file becomes available. Prosecutors often will not release an active investigative file, and that objection ends when the case closes.

Timing here is a strategic judgment, not a rule. It depends on the strength of the evidence, the insurance available, and what a delay costs the family.

What the Criminal Outcome Actually Proves in the Civil Case

This is where families are most often misinformed, and the answer depends on how the criminal case ended.

Restitution Does Not Replace a Civil Recovery

A criminal court may order a convicted defendant to pay restitution to the victim’s family. Families frequently believe this is their compensation.

Families may also be eligible for financial assistance through the Georgia Crime Victims Compensation Program, which can help with certain crime-related expenses such as funeral costs, counseling, and loss of support.

It rarely comes close. Restitution is typically limited to documented out-of-pocket losses, and it is capped in practice by what the defendant can personally pay.

A wrongful death claim measures something entirely different — the full value of the life of the decedent under O.C.G.A. § 51-4-1, with no deduction for the person’s own living expenses had they lived.

There is also a funding difference that matters more than anything else. Restitution comes from a defendant’s own pocket, usually in small monthly payments over years, while a civil recovery is normally paid by insurance.

Insurance is not unlimited in what it responds to, though. Liability policies are written to cover accidents, and where conduct crosses from negligence into deliberate intent an insurer may invoke an intentional-act exclusion and decline the loss.

That matters most where the individual has no assets, because the coverage was the only real source of payment. It is one reason we evaluate a criminal and civil matter as a single picture.

A conviction and a collectible judgment are also two different things. Our first question is not only who is most to blame, but who had both a duty to prevent the death and the resources to answer for it.

Restitution does not automatically reduce a civil award, though how the two interact depends on the terms of the criminal order and the civil resolution. Any restitution already paid should be disclosed to your civil attorney so it can be accounted for properly.

Evidence That Crosses From the Criminal File Into Your Case

One genuine benefit of a parallel prosecution is the volume of investigative work already done at government expense.

Material that commonly becomes available includes:

• Police reports and supplemental narratives: Officer observations, measurements, and statements taken at the scene.
• Body camera and dash camera video: Often the closest thing to a recording of what happened.
• Accident reconstruction: Speed, impact angle, and sequence analysis by trained investigators.
• Toxicology and crime lab results: Blood alcohol and drug testing performed under chain of custody.
• Autopsy and medical examiner findings: Cause and mechanism of death.
• Sworn testimony: Hearing and trial transcripts in which witnesses are locked into a version of events.

Access is not automatic. Law enforcement routinely withholds records from an open investigation, and obtaining them usually requires waiting, an open-records request, or a civil subpoena.

Our firm also retains its own experts rather than relying on the State’s work. A criminal investigation is built to prove a charge, not to prove the full value of a life.

If a prosecution is underway and you want the civil side handled properly from the start, call (706) 539-5191 or use our contact page.

What Our Attorneys Watch For

Parallel proceedings create risks that have nothing to do with the charges.

• Social media during a live prosecution: Nobody investigates a small claim, but where a great deal of money is at stake, spending a little to find one damaging photograph is an easy business decision. Do not delete existing posts, because removing them can become its own issue in the case, and platforms answer subpoenas with the content and the timestamps. The better step is to stop posting about the loss or the claim, and to tell us what is already out there.
• The adjuster’s early call: A friendly call offering to get everything resolved quickly is a trained professional building a record. A recorded statement can damage a claim even when every word of it is true, and here it can surface in two proceedings rather than one.
• Waiting is what loses winnable cases: Nothing about the criminal calendar preserves a repair record, a dashcam file, or a witness’s memory, so we send preservation demands early. Talking to insurers alone and assuming there is no case because the charged person is broke are the other mistakes that leave legitimate claims unfiled.

If charges are pending and no one has looked at the civil side yet, call (706) 539-5191 or reach us through our contact page.

How Our Team Can Help

Running a civil case alongside a prosecution takes coordination. Discovery timing, records requests, and the decision whether to press forward or wait all have to be handled with the criminal calendar in view.

Our attorneys at Hawk Law Group bring more than 71 years of combined legal experience to wrongful death claims, with five staffed offices serving Augusta, Evans, Thomson, Waynesboro, and Aiken. We work with medical experts, forensic specialists, and accident reconstruction experts, and we handle these cases on a contingency fee — no upfront cost and no fee unless we recover.

Call (706) 539-5191 or reach out through our contact page. We offer free consultations, home and hospital visits, and se habla español.