Suppose Joyce died in a car crash that was the result of another driver’s negligence. Joyce left behind her husband, Tom, and their children, Charlie and Maggie.

In the wrongful death lawsuit, the insurance company for the at-fault driver offered one million dollars. Tom, as the surviving spouse, has the right to accept this settlement without the consent of the children or the approval of the court. The distribution will be as follows:

  • The surviving spouse, Tom, will get at least $333,333 as the spouse’s share. The spouse’s share is one-third of the total recovery.
  • Tom will have to divide the $1,000,000 equally with Charlie and Maggie, up to the point at which Tom still gets his spousal share. If there were no surviving children, Tom would receive the entire $1,000,000. With one surviving child, Tom and the child would each receive $500,000. If there are three or more children, Tom will get $333,333, and the children would equally divide the $666,667.
  • A guardian will have to hold in trust any child’s recovery that is $15,000 or more if that child is under the age of majority.
  • Children born out of wedlock get to receive a share of the recovery the same as children born in marriage.
  • Grandchildren of the decedent can also receive part of the recovery, but they do not necessarily share equally with the others.
  • The debts and liabilities of the decedent will not reduce the amount of recovery in a wrongful death claim.

Distribution of Wrongful Death Proceeds for the Homicide of a Child

The priorities are different for the death of a child. A surviving spouse or child of the decedent can bring an action to recover for the full value of the life of the child. If the deceased child left no surviving spouse or children, the parent or parents of the child can file the lawsuit.

Georgia law imposes these rules on parents who pursue wrongful death claims for the homicide of a child:

  • If only one parent is alive, the surviving parent has the right to receive the entire recovery.
  • If both parents are alive, the parents can recover the proceeds of the settlement jointly.
  • Both parents have the right to recovery if they are divorced, separated, or living apart.
  • If one such parent (divorced, separated, or living apart) refuses to participate in the claim or the other parent cannot find this parent, the parent who wants to proceed can go forward with the action. In cases like this, the settlement is binding on both parents.
  • These parents will share the proceeds equally unless one parent is absent or the parent who brought the action files a motion requesting a different distribution.
  • In the situation of an absent parent, the court will hold that parent’s share for two years, after which time the other parent can petition the court to release those funds to the parent who initiated the action.
  • A parent can ask the court to apportion the proceeds in a fair manner (rather than equally) to account for each parent’s relationship with the child including the permanent custody, control, support of the child, and other relevant factors.

How to Get Help for a Wrongful Death Case in Georgia

Do not worry about these rules – we can explain them to you personally. We can talk with you about the facts of your case and analyze who may benefit from a wrongful death settlement and how Georgia law will distribute the proceeds. Call 404-474-0804 today to schedule a free consultation.


Jason R. Schultz
Helping Georgia area residents with car accident, medical malpractice, and personal injury claims since 1991.