What’s the Difference Between a Wrongful Death Claim and an Estate Claim in Georgia?

Wrongful death and estate claims arise out of the same event — the wrongful death of someone. The main differences are who brings the claim and what damages are included. When someone passes away due to the criminal acts, negligence, or reckless behavior or someone else, some surviving family members are entitled to bring a wrongful death lawsuit against the responsible party.

There are a number of scenarios that can lead to a wrongful death action. Some of these include:

  • Assault and battery

  • Medical malpractice

  • Vehicle accidents

  • Intentional acts, like other criminal acts

  • Boating accidents

  • Premise liability, like a slip and fall

  • Road rage

When someone passes away, there are two main types of remedies available under Georgia tort laws. The first is a wrongful death action filed by the surviving members of the family, and the other is an estate claim filed by the estate’s representative.

Wrongful Death Claims

In a wrongful death action, the surviving family members essentially step into the shoes of the decedent and demand recovery for the full value of his or her life. The first person with the right to file is the surviving spouse. If there are any minor children involved, the surviving spouse will include their interests in the lawsuit. Absent a spouse and/or minor children, the decedent’s parents have a right to bring a claim. The personal representative for the estate is last. If the estate brings the wrongful death claim, damages would be divided according to Georgia’s probate rules.

The damages sought in a wrongful death action can include tangible items like loss of earnings, and intangible benefits like loss of companionship.

Estate Claims

In an estate claim, the decedent’s estate attempts to recoup expenses, like funeral and burial costs. It can also pursue medical expenses and pain and suffering for the period of time the decedent lived after the accident. Someone who is killed instantly in an accident would likely have no ongoing medical treatment or pain and suffering associated with their death. If someone is on the verge of death and spends a week in the hospital before succumbing to their injuries, there would be associated medical expenses as well as pain and suffering.

Calculating potential damages for pain and suffering in an estate claim can be more challenging than it sounds. Georgia law does allow recovery when the decedent lives for only a few seconds, so it’s not as clear cut as you might imagine. The decision is left in the hands of the jury, but you can help support an award for pain and suffering through the use of experts who can testify as to the scope of pain and suffering the deceased likely experienced.

Retaining an Atlanta Wrongful Death Attorney

If a loved one has passed away due to the negligence or criminal acts of another person, it’s important to contact a skilled Atlanta wrongful death attorney right away. You only have a limited amount of time to file, otherwise you are barred from recovery. Contact Christopher Simon Attorney at Law today at 404-259-7635 to schedule a consultation.
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