Can You File a Wrongful Death Claim After a Car Accident?

Losing a loved one is something that we never want to think about. It is a heartbreaking tragedy that changes lives forever. But, when you lose a loved one due to the negligence of another person or company, you have a right to compensation.

In this article, our wrongful death lawyers explain some of the legal background for a wrongful death lawsuit after a car accident in Georgia.

You can hold drivers accountable for negligence — and, in the most serious cases, for vehicular homicide under O.C.G.A. § 40-6-393. This article will show you the ins and outs of a wrongful death lawsuit. Let’s explore.

Last reviewed: 2026-08-04

What Does Georgia Law Say?

What is a wrongful death lawsuit? Under O.C.G.A. § 51-4-1, the "homicide" behind a wrongful death claim covers a death resulting from a crime, from criminal or other negligence, or from defectively manufactured property. And, any offender who commits an intentional act that results in death can face civil and criminal penalties. Wrongful death laws also pertain to entities.

The law relegates wrongful death cases to the civil courts. These types of cases don’t take place in criminal courts, even if the death stemmed from criminal activity. Criminal and civil cases function in separate capacities.

Who Can File a Wrongful Death Lawsuit?

Suing for wrongful death is only possible through immediate family members in Georgia. And, not all family members of the victim can invoke a claim. See our detailed FAQ on who can file a wrongful death lawsuit for a complete breakdown of eligible parties.

The following parties can bring forth a lawsuit in the following order:

• Spouse
• Children
• Parents
• Estate executor or representative

The spouse of the victim files first, and with no spouse the children can usher a claim — that priority comes from O.C.G.A. § 51-4-2. The parents' tier is narrower: it covers the death of a child who leaves no spouse or child, under O.C.G.A. § 51-4-4 and § 19-7-1(c).

With no one entitled to file under § 51-4-2 or § 51-4-4, the estate's administrator or executor files under O.C.G.A. § 51-4-5(a), holding any recovery for the next of kin. Other family members, such as aunts and uncles or grandparents, cannot petition the court.

With that, parents of adopted children can proceed with a lawsuit. A child that perished in the womb can also give the parents the right to compensation, but under O.C.G.A. § 19-7-1(c)(1), amended effective July 1, 2024, that right begins only at the point a detectable human heartbeat is present. Moreover, the death of an out-of-wedlock child qualifies the parents to sue.

What Type of Lawsuit Should I File?

You have two options when filing a claim: a wrongful death claim and a survivor’s claim. A wrongful death case is appropriate when family members need financial compensation as a result of the loss.

A survivor’s claim includes any damage suffered by the decedent. The suffering and damages can be in the form of medical bills, ambulance rides, or funeral expenses.

The survival claim is also appropriate in the event of mental anguish and distress that the victim suffered before death.

• Example: A person that underwent multiple surgeries and slipped into a coma before dying had suffered a great deal. Therefore, you can commence a lawsuit for the cost of surgery and hospital care.

With that, a survival suit is most appropriate during estate matters. The executor can use the funds to pay off the decedent’s remaining debts before disbursing the leftover funds to beneficiaries.

If there is no will, the probate court will settle the matter.

If you need immediate financial compensation, a wrongful death claim is the best option. However, speak to an attorney for further guidance.

**What Type of Compensation Can I Get? **

First, you can get current and future wages that the deceased would have brought to the household. And, you can recover losses in benefits, such as insurance or retirement funds.

More importantly, you can get monies based on lost companionship and support. For any other type of compensation, talk to an attorney about your prospects.

Under O.C.G.A. § 51-4-2(d), the recovery is divided share and share alike among the surviving spouse and children per capita — except that the spouse must receive no less than one-third, no matter how many children share it.

How Much Can I Get?

The amount depends on the case itself. However, the court can award compensation based on the full life of the deceased.

The amount isn’t based on the value from the viewpoint of surviving family members. Rather, it is the full value of the decedent’s own life, which O.C.G.A. § 51-4-1 measures without deducting the personal expenses the decedent would have had. That covers what the deceased would have contributed to the household plus the intangible value of the life itself, such as:

• The loss of raising children
• The loss of income
• The loss of activities
• The loss of daily life

When it comes to activities and daily life, the court can assess how active the person was in addition to hobbies and personal interactions with family members. For income, a jury could calculate the yearly salary of the deceased and multiply it by the remaining working years.

However, the calculation will depend on the judge or jury. Also, an attorney can help you determine the damages that you suffered. For an initial look at potential compensation, try our settlement calculator.

How Can I Prove My Case?

You must prove four elements to win your case:

• Duty
• Breach of Duty
• Causation
• Proof of Damages

A breach of duty occurs when the driver failed in his or her duties as a responsible driver. Then, the breach of duty must cause the death of your loved one. Finally, you must prove that the breach of duty and death of your family member brought you suffering and damages.

Why Should I Hire an Attorney for my Wrongful Death Claim?

An attorney can paint a realistic picture of your wrongful death claim. Overall, you have two years from the date of death to file a wrongful death lawsuit, though a pending criminal prosecution of the at-fault driver tolls that clock for up to six years under O.C.G.A. § 9-3-99. Mark Wade, Founder and Lead Attorney at Georgia Auto Law, points out that families rarely lose these cases on the deadline — they lose leverage in the first weeks, before an estate is opened and before anyone has found every policy that could pay the claim. An attorney can help you file the necessary legal paperwork so you can start your case promptly.

A lawyer can also deal with the legal headaches while you focus on the healing process.

Frequently Asked Questions

How is the "full value of the life" calculated?

O.C.G.A. § 51-4-1 defines the "full value of the life of the decedent" as the value shown by the evidence, with no deduction for the decedent’s own living expenses — both economic (lost wages, benefits, household services) and intangible (loss of enjoyment, relationships, experiences). Juries are not limited to economic loss; intangible value is often the larger component.

How long do I have to file a wrongful-death claim?

Two years from the date of death under O.C.G.A. § 9-3-33. If a related criminal case is pending against the at-fault party, the civil statute is tolled while it resolves, for up to six years under O.C.G.A. § 9-3-99. If the claim is against a city, ante litem notice is due within six months under O.C.G.A. § 36-33-5; a claim against a Georgia county must be presented within 12 months under O.C.G.A. § 36-11-1.

Can the estate also bring a claim?

Yes — under O.C.G.A. § 51-4-5(b) the personal representative recovers funeral, medical, and other necessary expenses, and O.C.G.A. § 9-2-41 preserves the decedent’s own claim for conscious pain and suffering. The wrongful-death claim (for the value of the life) and the estate claim (for pre-death damages) are filed together and tried together.

Who can file a wrongful-death claim in Georgia?

Under O.C.G.A. § 51-4-2, § 51-4-4, and § 51-4-5, the surviving spouse files first; if there is no spouse, surviving children file; the parents file for the death of a child who leaves no spouse or child; and the personal representative of the estate files only when no one else is entitled to. Only one wrongful-death claim can be brought — it belongs to the highest-priority survivor.