When someone dies due to another person’s negligence in Georgia, families often face confusion about which type of legal claim to file. The state allows two distinct types of lawsuits after a death: wrongful death actions and survival actions. Each serves a different purpose and compensates for different losses.
What A Wrongful Death Claim Is
A wrongful death claim belongs to the surviving family members. Georgia law gives specific people the right to bring this type of lawsuit, following a strict order of priority. The hierarchy works like this:
- The surviving spouse files first
- If no spouse exists, the children can file
- If no spouse or children exist, the parents can file
- If none of these family members exist, the estate administrator can file
This claim seeks compensation for what the family lost when their loved one died. The damages focus on the value of the deceased person’s life to their survivors, not what the deceased person experienced.
What A Survival Action Is
A survival action is fundamentally different. This claim represents what the deceased person could have filed if they had lived. The estate administrator brings this lawsuit on behalf of the deceased. Think of it this way: if your loved one suffered for hours or days before dying, they would have had the right to sue for that pain and suffering. A survival action allows the estate to pursue that claim after death.
Key Differences Between The Two Claims
The most significant difference lies in who benefits from each claim. Wrongful death proceeds go directly to the family members specified in the statute. Survival action proceeds become part of the deceased person’s estate and are distributed according to their will or Georgia’s intestacy laws. The damages also differ substantially. Wrongful death claims compensate for loss of companionship, lost financial support, and the full value of the deceased person’s life. These damages are not subject to estate debts or creditors. Survival actions compensate for what the deceased person endured before death. This includes medical bills, pain and suffering, lost wages from injury to death, and funeral expenses. These damages become estate assets that creditors can reach.
When To File One Or Both Claims
Many families can and should file both types of claims. A DeKalb County wrongful death lawyer can evaluate whether your situation allows for both actions. You would typically file both when the deceased person survived for any period after the negligent act. For example, if someone died in a car accident but lived for three days in the hospital, the family could pursue wrongful death damages while the estate pursues survival action damages for those three days of suffering and medical treatment. If death were instantaneous, a survival action may not yield significant damages since there was no conscious pain or suffering.
Time Limits Matter
Georgia imposes a two-year statute of limitations for wrongful death claims. Survival actions follow the same timeline that the deceased would have faced for a personal injury claim, typically two years from the date of injury. Missing these deadlines means losing your right to compensation entirely. The clock starts ticking immediately, and gathering evidence becomes harder as time passes. Working with A DeKalb County wrongful death lawyer ensures that there is someone on your side keeping track of these things and gathering evidence quickly.
Choosing Your Legal Strategy
Some families focus primarily on the wrongful death claim because it offers broader damages and protects the recovery from creditors. Others need the survival action to address substantial medical bills that accumulated before death. The decision depends on your specific circumstances. Consider factors like whether the deceased person suffered before dying, the extent of medical bills, whether they left significant debts, and who will benefit from each type of recovery. Working with Deitch + Rogers means having someone evaluate all angles of your case. We can explain which approach makes sense for your family’s situation and maximum recovery potential. Understanding these differences helps families make informed decisions during an already difficult time. The right legal strategy depends on your unique circumstances and what matters most to your family’s future. Contact us today.