Who Can File a Wrongful Death Claim in Georgia

A surviving spouse files first. If there is no spouse, a child or children file. If the person who died was a child with no spouse or child, the parents hold the right. If no one in that order exists, the administrator or executor files for the next of kin. A will or family agreement does not change this order, because the right comes from statute and not from the estate.

Family at death	Who holds the right	Statute
Spouse, with or without children	Surviving spouse	§ 51-4-2(a)
No spouse, one or more children	The child or children, minor or adult	§ 51-4-2(a)
Child who left no spouse or child	Parent or parents	§ 19-7-1(c)(2)
None of the above	Administrator or executor, for next of kin	§ 51-4-5(a); § 19-7-1(c)(3)

Filing is a separate question from who receives money. A spouse may hold the only right to sue and still owe shares to the children, a rule covered in how the statute ranks and pays beneficiaries.

When the surviving spouse will not or cannot file

The statute names the spouse, but the courts have recognized a way around a spouse who declines. In Blackmon v. Tenet Healthsystem Spalding, 284 Ga. 369 (2008), a grandmother who was a child’s legal guardian sued on behalf of the child because the father, the surviving spouse, was incarcerated. The Supreme Court noted that “other persons acting in a representative capacity” have been allowed to maintain the action on behalf of a minor child “where the surviving spouse declines to pursue the claim”. It sent the matter toward superior court, because the opinion treated this as a question of equity and assumed the state court lacked that power.

Three points follow from the opinion:

• The route exists to protect a minor child’s interest.
• The forum matters. A guardian in this position may need a superior court, and not every court where the injury case could be filed.
• The opinion does not create a general right for any relative to file because the family disagrees.

The statute also lets a spouse settle without the children’s agreement. Under § 51-4-2(c), the spouse “may release the alleged wrongdoer without the concurrence of the child or children”, while remaining accountable for their shares.

If the person holding the right dies during the case

O.C.G.A. § 51-4-2(b) covers this directly. If a spouse dies while the action is pending, it “shall survive to the child or children of the decedent”. If one of several child plaintiffs dies, it survives to the remaining children.

Which children count

Adopted children stand as biological children. Under § 19-8-19(a)(2), a decree creates “the relationship of parent and child” as if the adopted person were “a child of biological issue”.

Children born outside marriage have a rule that changed recently. For deaths governed by the current text, House Bill 327, summarized by Legislative Counsel as effective July 1, 2025, revised § 51-4-2(f). Birth out of wedlock is no bar “provided that such child born out of wedlock had rights of inheritance from or through the child’s deceased parent” under § 53-2-3. For a mother, § 53-2-3(1) gives that right directly. For a father, the listed routes include a court order of legitimation or paternity, a sworn statement, the father’s signature on the birth certificate, or other clear and convincing evidence.

A stepchild does not appear in § 51-4-2. The statute speaks of “a child or children”, and the adoption statute is what brings a non-biological child in. Questions about minor children and the deadline are covered in children of deceased parents.

When the person who died was a child

“Child” here includes an adult child, because § 19-7-1(c)(1) refers to the homicide of “a child, minor or sui juris”. The parents’ right applies only if the child “does not leave a spouse or child”.

• Parents living together and not divorced hold the right jointly.
• If one parent is dead, the survivor holds it.
• If the parents are divorced, separated, or living apart, both hold it. If one refuses to proceed or cannot be found, the other may contract for representation on behalf of both and proceed for both.

Section 19-7-1(c)(1) also addresses an unborn child, stating that the right to recover “shall begin at the point at which a detectable human heartbeat” is present.

Who cannot file despite a family connection

O.C.G.A. § 53-1-5 removes the right from a person who “feloniously and intentionally” killed the decedent or conspired to do so, and treats that person as having died first. Grandparents, siblings, and other relatives have no independent right. They can receive money only through the next-of-kin route, where the personal representative brings the case under § 51-4-5(a). When that route applies, the first step is an appointment through the probate court.

Sources

• Official Code of Georgia Annotated, November 2022 public release: §§ 19-7-1, 19-8-19, 51-4-2, 51-4-5, 53-1-5, 53-2-3
• Blackmon v. Tenet Healthsystem Spalding, 284 Ga. 369
• House Bill 327, as passed (2025)

This page was last reviewed in November 2026 for general information. Laws and court decisions can change after that date. It is not legal advice and does not create an attorney-client relationship.