What Is the Difference Between a Wrongful Death Claim and a Survival Claim in Georgia?

When a loved one dies because of someone else’s negligence, families might hear two terms used interchangeably: wrongful death and survival action. Knowing the difference between a wrongful death claim and a survival action in Georgia matters, because these are two distinct types of claim, each governed by its own rules for who can file and what can be recovered. Some families pursue a wrongful death lawsuit, a survival action, or both depending on the circumstances. In this article, we break down the distinctions between a wrongful death vs. survival action in Georgia for surviving family members.

What Is a Wrongful Death Claim in Georgia?

A wrongful death claim is a civil action brought by surviving family members when a person dies as a result of another party’s negligence or intentional misconduct. Under Georgia law, this claim compensates the decedent’s survivors for the loss of their loved one, not the estate directly. The claim seeks compensation for the losses experienced by the spouse or children, including the value the decedent’s life represented to them.

Who Can File a Wrongful Death Claim in Georgia?

Georgia law establishes a specific order of priority for who may bring a wrongful death claim. A surviving spouse has the first right to file, and Georgia law guarantees that spouse no less than one-third of any recovery when children are also involved. If there is no surviving spouse, the decedent’s children may bring the claim. If neither a spouse nor children survive, the decedent’s parents may file, and if none of these family members are alive, the personal representative of the deceased person’s estate may bring the action on behalf of the next of kin.

What Damages Are Available in a Wrongful Death Claim?

Georgia wrongful death claims focus on what the law calls the full value of the life of the decedent, considered from the decedent’s own perspective, not simply the financial contribution the person made to the family. This can include lost wages and benefits the decedent would reasonably have earned, along with the decedent’s companionship, guidance, advice, and relationships. Funeral and burial expenses may also be recovered, although these costs are sometimes pursued separately by the estate.

What Is a Survival Action in Georgia?

A survival action is a different type of claim entirely. Rather than compensating the family, it allows the deceased person’s estate to pursue the claims the decedent could have brought had they survived. Under O.C.G.A. § 9-2-41, a cause of action for personal injury does not disappear simply because the injured person later dies; the right to pursue it survives to the estate.

Who Can File a Survival Action on Behalf of the Estate?

Survival actions in Georgia are filed by the executor or administrator of the deceased person’s estate, not by individual family members. Because the recovery belongs to the estate rather than directly to the survivors, any amount recovered generally becomes part of the estate and may be subject to its debts, including outstanding medical bills, before being distributed to heirs.

What Damages Can Be Recovered Through a Survival Action?

A survival action seeks compensation for the losses the decedent personally suffered between the time of injury and the time of death. This typically includes financial losses such as medical bills and lost wages from that period, along with compensation for the decedent’s pain and suffering before death. In some circumstances, Georgia law also permits punitive damages in a survival action, a remedy that is generally unavailable in standard wrongful death cases.

Wrongful Death Claim vs. Survival Action: Key Differences at a Glance

The wrongful death vs. survival action Georgia distinctions become clearer when compared side by side:

Georgia law allows a spouse or children to pursue both a wrongful death claim and a survival action arising from the same underlying incident, since each addresses a different type of loss.

How Long Do You Have to File a Wrongful Death or Survival Action in Georgia?

Georgia generally applies a two-year statute of limitations to both wrongful death and survival actions, but the clock starts running at different points for each. For a wrongful death claim, the two-year period generally begins on the date of death. For a survival action, the deadline is measured from the date of the injury that eventually caused death, not the date the person died. 

The distinction matters when a person survives an injury for months before passing away, since the survival action deadline may arrive well before the two-year wrongful death deadline does. Certain circumstances, such as an unprobated estate, may toll or extend these deadlines, which is one of many reasons speaking with a wrongful death lawyer early is valuable.

Speak With an Atlanta Wrongful Death Attorney About Your Legal Options

Losing a family member because of another party’s negligence brings grief that no legal claim can undo, but understanding the wrongful death vs. survival action Georgia distinction can help surviving family members make informed decisions about how to move forward. Because these claims involve separate legal standards and separate deadlines, working with an experienced wrongful death lawyer makes sure that no valid claim is overlooked. 

If you have lost a loved one due to someone else’s negligence in Georgia, contact Hoffspiegel Law for a free consultation to discuss your legal options.