When the criminal or negligent conduct of another party causes the death of their child, parents can file a wrongful death action. However, the parents are permitted to file a wrongful death case only if the child has no surviving spouse or children.
A Wrongful Death Claim to Recover the Value of the Decedent's Life
If a child has a surviving spouse or child, the spouse or child brings the suit. The parents of a child may file a wrongful death claim to recover the value of their child's life if the child has no surviving spouse or children.
Which Parent Files a Wrongful Death Claim for the Value of the Child's Life
Generally, both parents bring the wrongful death action jointly. The joint right to bring the suit exists even if the parents are divorced, separated or living apart.
An exception applies when one of the parents refuses to bring the suit or cannot be located. The other party can bring the suit on behalf of both parents. If one parent dies, the other parent has the sole right to bring the wrongful death action.
A parent can lose his or her right to file a wrongful death suit for a child’s death. Reasons for the loss of this right include:
- Releasing his or her rights to a third person
- Consent to the child's adoption
- Abandoning the child
- Engaging in cruel treatment of the child
Value of a Child Wrongful Death Action
A lawyer will hire an expert to help place a value on the deceased child's life. An economist can help estimate the amount of money the child would have earned during his or her life. The parent can also recover for the loss of companionship with the child. Funeral expense and medical expenses may be recoverable as well.
Division of the Recovery Between the Parents
The recovery goes equally to both parents if the parents are married and living together. In the case of divorced parents, separated parents, or parents living apart, either parent may file a motion to apportion the recovery fairly. At a hearing, each party can present evidence about his or her relationship with the child. A judge will consider the relevant factors, such as who had primary custody of the child, and determine a fair apportionment of the recovery.
A Wrongful Death Claim to Recover the Decedent's Financial Losses
A personal representative of the child's estate may file a wrongful death claim to recover the deceased child's financial losses. Who is the personal representative of the child's estate?
- If the child has a will, the personal representative is the person designated as executor in the will. The executor may be a parent, but if the child is an adult, the will may name a spouse, a child or another third person as the executor.
- If the child does not have a will, which may be the case with a young child, the court appoints an administrator who serves as the personal representative. This most likely will be the child's parent(s).
The wrongful death recovery goes into the estate and is distributed to beneficiaries per the terms of the child’s will or according to the laws of intestacy. If the child dies without a spouse or a child, the assets of the estate pass to the child's parents.
When to File the Wrongful Death Claim
Generally, you have two years after a child's death to file a wrongful death claim per the Georgia statute of limitations. Contact a lawyer as soon as possible so she can begin investigating the circumstances of the claim.
S. Burke Law will gather evidence to prove liability for the child's death and present evidence to establish the value of the case.
Call S. Burke Law at 404-842-7838 for a free consultation about your wrongful death case.