Losing a loved one is a profoundly difficult and painful experience.
The grief can feel all-consuming, and when the death is caused by someone else’s negligence or wrongdoing, it adds a layer of shock and injustice. In the midst of such a tragedy, you may feel overwhelmed and unsure of what to do next.
It’s an important time to understand your legal rights and options for seeking justice on behalf of your family member.
In Georgia, two distinct types of claims can be pursued after a wrongful death: a wrongful death claim and a survival action. While they arise from the same tragic event, they serve different purposes and compensate for different types of losses.
Knowing this difference is vital to ensuring you can recover the full compensation you and your family deserve.
Our experienced team at Hawk Law Group is here to help you through this difficult time. We understand the complexities of these cases and will stand by your side to fight for the financial justice you and your family deserve.
If you believe your loved one’s passing may qualify for legal action, our Augusta wrongful death lawyer is ready to evaluate your case and guide you through the next steps.
The Two Claims Georgia Creates After a Wrongful Death
Georgia splits the losses from a fatal injury into two claims because two different “victims” suffer. The family loses their loved one, and the deceased person suffered their own harm before passing.
- The wrongful death claim: Brought by the surviving family to recover the value of the life that was lost — measured from the deceased person’s point of view.
- The survival (estate) claim: Brought by the estate to recover the losses the deceased person personally suffered before death, such as medical bills, funeral costs, and pain and suffering.
Each claim has its own rules for who can file and who gets paid. In most fatal-injury cases, our attorneys file both at once against the same at-fault party.
What Is a Wrongful Death Claim in Georgia?
A wrongful death claim compensates the family for the loss of their loved one. It is governed by Georgia’s Wrongful Death Act, O.C.G.A. § 51-4-1 and the sections that follow.
The defining feature of this claim is that it recovers the “full value of the life of the decedent.” Georgia measures that value from the deceased person’s perspective — what life was worth to them, not just what the family lost financially.
Who Can File a Wrongful Death Claim
Georgia law sets a strict order of who has the right to bring this claim.
Wrongful death claim · O.C.G.A. § 51-4-1
Georgia sets a strict order for who may bring a wrongful death claim. Only one tier files at a time, which is why disputes over standing are common and worth settling early.
Tier 1
The surviving spouse
Files first, and shares the recovery with any children — but by law never receives less than one-third
Tier 2
The surviving children
File if there is no surviving spouse
Tier 3
The surviving parent(s)
File if there is no spouse and no children
Tier 4
The estate’s personal representative
Files if there is no spouse, child, or parent, and holds the money for the next of kin under O.C.G.A. § 51-4-5(a)
Because eligibility follows this hierarchy, a claim filed by the wrong party can be challenged later — confirming the correct filing party at the outset protects the whole case.
Georgia measures the recovery from the deceased person’s perspective — what life was worth to them, not just what the family lost financially. That value has two parts.
Part one
Economic value
Lost future income, employment benefits, and the value of the services the person would have provided to the household.
Part two
Intangible value
The experiences, relationships, and enjoyment of living that the person lost — the parts of life that have no invoice, and where insurers push hardest to shrink the number.
One rule surprises most families: Georgia does not subtract the deceased person’s own living expenses from this figure. The claim is about the worth of the life itself, viewed through the eyes of the person who died.
Because those factors vary so much from one family to another, there is no single number that applies to every case. Our guide to the average wrongful death settlement in Georgia explains what typically drives settlement value and why individual outcomes can differ so widely.
In our experience, the economic side is rarely where the fight is. It is the intangible value — the birthdays, the guidance, the simple presence at the dinner table — that insurers push hardest to shrink, precisely because it has no invoice and is hardest to put a number on. When we hear an adjuster minimizing “the emotional part,” what we are really hearing is where the real value of the life sits.
What Is a Survival (Estate) Claim in Georgia?
The survival claim — often called the estate claim — recovers the losses the deceased person suffered before they died. It is brought by the personal representative of the estate, not by individual family members.
In our experience, this is the claim most families have never heard of. They come in knowing a wrongful death case exists, but not that Georgia also lets the estate pursue a separate claim for what their loved one personally went through in their final moments. Where the wrongful death claim measures the value of the life, this claim answers a different and painful question: how the person died. The manner of dying is its own loss — distinct from the worth of the life — and because families rarely know to ask for it, it can go entirely unclaimed when the wrong counsel handles the case.
Georgia builds this recovery from two sources. O.C.G.A. § 51-4-5(b) lets the personal representative recover the funeral, medical, and other necessary expenses resulting from the injury and death. Georgia’s survival statute, O.C.G.A. § 9-2-41, keeps the deceased person’s own injury claim alive so the estate can pursue the pain and suffering they endured.
Damages the Estate Can Recover
These damages focus on what happened to the deceased person between the injury and death, and on the bills the death created.
- Medical expenses: The cost of the emergency care, hospitalization, and treatment for the fatal injury.
- Funeral and burial expenses: The reasonable costs of laying the person to rest.
- Conscious pain and suffering: Compensation for the physical pain and mental anguish the person consciously experienced before death.
The pain-and-suffering portion depends on whether the person was conscious and for how long. When death is instant, that element may be limited; when a person survives for hours, days, or longer, it can be substantial.
Families are often surprised to learn how little conscious awareness the law requires. Even a few seconds of awareness — the moment a person understood what was happening to them — is a compensable harm the estate can pursue. One of the first things our attorneys look at is the evidence of those final moments, because that window is easy to overlook and impossible to reclaim later.
If your loved one suffered before passing, that harm should not be overlooked. Call us at (706) 539-5191 for a free consultation — you pay nothing unless we recover for you.
Wrongful Death vs. Survival Action: Side-by-Side Comparison
The table below sums up how the two Georgia claims differ.
Two claims, one case
Both claims arise from the same death and the same at-fault party, and in most fatal-injury cases they are filed together. Each recovers something the other cannot.
The wrongful death claim cannot recover the medical bills or the pre-death pain, and the survival claim cannot recover the full value of the life. Filed correctly, the two together give a family the fullest recovery Georgia allows.
This is one of the most misunderstood parts of Georgia law. The two claims pay out to different people, through different channels.
Wrongful death proceeds
Straight to the family
Paid directly to the eligible surviving family members. This money generally passes outside the estate and is not used to pay the deceased person’s creditors.
Survival / estate proceeds
Into the estate first
Distributed under the will, or under Georgia’s intestacy laws if there is none — and creditors of the estate may have a claim to them first.
Because the destinations differ, how a settlement is allocated between the two claims can change who ends up with the funds. Recoveries should be structured with that in mind so the family’s share is protected wherever the law allows.
How the Two Claims Work Together in One Case
In most fatal-injury cases in Georgia, both claims arise from the same accident and the same at-fault party. They are filed together and often resolved together.
Keeping them separate matters because each recovers something the other cannot. The wrongful death claim cannot recover the deceased person’s medical bills or pre-death pain, and the survival claim cannot recover the full value of the life.
For example, if a driver runs a red light and causes a crash, the victim may survive in the hospital for several days before passing. The estate’s survival claim would seek those hospital bills and the pain endured, while the family’s wrongful death claim would seek the value of the life that was lost.
Filed correctly, the two claims give a Georgia family the fullest recovery the law allows. Filed incorrectly, valuable damages can be left on the table.
There is a practical reality behind pursuing both, too. A claim is only worth what someone can actually pay, so one of the first things our attorneys look at is not just who was at fault, but who — and which insurance policies — can realistically satisfy a recovery. Both claims often draw from the same coverage, and building them together lets us seek the full value the available insurance and assets will bear.
Statute of Limitations for Georgia Wrongful Death and Estate Claims
Georgia generally gives you two years to file, under O.C.G.A. § 9-3-33. For a wrongful death claim, the clock usually starts on the date of death.
Missing this deadline can permanently bar the claim, so it is important not to wait. That said, several exceptions can pause — or “toll” — the two-year period depending on the facts.
- No estate opened yet: If no estate has been established, the deadline can be paused while the estate remains unrepresented, up to a limited number of years.
- A related criminal case: If the death led to criminal charges, the deadline may be tolled while that prosecution is pending.
- Minor beneficiaries: Deadlines can be affected when the people entitled to recover are minors.
- Medical malpractice deaths: These carry their own timing rules, including a separate statute of repose.
These rules are fact-specific and change how the deadline applies to your situation. Georgia law can also change over time, so the safest step is to have an attorney confirm your exact deadline early.
If you are unsure how much time you have, do not guess. Contact our attorneys at (706) 539-5191 for a free case review — there is no fee unless we win.
How a Georgia Wrongful Death Lawyer Can Help
Handling two overlapping legal claims while grieving is a heavy burden, and you should not have to carry it alone. Our firm has more than 71 years of combined legal experience and has recovered hundreds of millions of dollars for injured people and families.
When you work with our legal team, we handle both the wrongful death and the survival claim from start to finish. Our attorneys:
- Investigate the cause: We gather evidence, work with accident and medical experts, and establish who is legally responsible.
- Identify the right claims and parties: We confirm who has standing to file and make sure no recoverable damages are missed.
- Handle the insurers: We deal with the insurance companies and their lawyers so your family does not have to.
- Prepare for trial: As a trial-focused firm, we build every case to be tried, which tells insurers we are ready to go to court for full value.
We serve families throughout Georgia and South Carolina, including Richmond, Aiken, Edgefield, and the surrounding CSRA. Families on the South Carolina side of the region can also speak with our Aiken County wrongful death lawyer about the legal options available after a fatal accident.
If you are unsure whether your case qualifies as wrongful death, speaking with our Augusta wrongful death lawyer will help you understand your legal rights and the most appropriate course of action.
Frequently Asked Questions
Can I file both a wrongful death claim and a survival action in Georgia?
Yes. The two claims cover different losses, so they are usually filed together against the same at-fault party. The wrongful death claim compensates the family, while the survival claim compensates the estate for the deceased person’s own losses. In our experience, many families do not realize the survival claim even exists, which is one reason it goes unclaimed when a case is not handled by counsel familiar with both.
Who gets the money from a survival action in Georgia?
Money from a survival (estate) claim goes into the deceased person’s estate. From there it is distributed under the person’s will, or under Georgia’s intestacy laws if there is no will, and estate creditors may be entitled to a share.
What is the difference between “full value of the life” and pain and suffering?
The full value of the life is recovered in the wrongful death claim and reflects what the life was worth to the person who died. Pain and suffering is recovered in the survival claim and reflects the physical and mental anguish the person consciously experienced before death. Put simply, one measures the value of the life, and the other measures the manner of the death — two separate losses, and even a few seconds of conscious awareness can support the second.
Do I need to open an estate to bring these claims?
To bring the survival (estate) claim, a personal representative of the estate generally must be appointed. The wrongful death claim, by contrast, is usually filed by the surviving spouse, children, or parents directly. Our attorneys can guide the family through opening an estate when it is needed.
How long do I have to file a wrongful death claim in Georgia?
The general deadline is two years from the date of death under O.C.G.A. § 9-3-33. Certain situations, such as an unopened estate or a pending criminal case, can pause that deadline, so it is best to confirm your specific timeline with an attorney.
How much does it cost to hire a wrongful death lawyer?
We work on a contingency fee basis. That means there are no upfront costs, we advance the litigation expenses, and you owe attorney’s fees only if we recover compensation for you.