Georgia wrongful death claims after a truck crash by a spouse, child or estate representative

Persons entitled to bring the claim

Section 51-4-2(a) sets an order among family members for the homicide of a spouse or parent, including a homicide arising from truck accidents. The surviving spouse is named first and may recover. Only if there is no surviving spouse may "a child or children, either minor or sui juris," recover under that subsection. For a married parent killed in a truck crash that is a homicide under Section 51-4-1(2), the person named first in Section 51-4-2(a) is the surviving spouse, and the children's share of any recovery comes through the division rules of Section 51-4-2(d).^[3][1]

Section 51-4-1(2) extends homicide beyond crimes and negligence to deaths caused by defectively manufactured property, which can include truck crashes in which defectively manufactured property causes the death. Under that paragraph, a death caused by a truck driver's criminal or other negligence fits the words "results from a crime, from criminal or other negligence," and a death caused by defectively manufactured property is included "whether or not as the result of negligence."^[1]

Section 51-4-5(a) gives the administrator or executor of the decedent a right of action only where neither Code Section 51-4-2 nor Code Section 51-4-4 gives any person the right to bring the wrongful death action. In that case the administrator or executor may bring the action and recover, holding the amount recovered "for the benefit of the next of kin." In a truck crash case where a spouse or child is entitled to sue under Section 51-4-2, the administrator or executor has no right of action under Section 51-4-5(a).^[4][3]

Section 51-4-2(f) provides that in actions under that Code section, the fact that a child has been born out of wedlock "shall be no bar to recovery," provided that the child had rights of inheritance from or through the child's deceased parent under Code Section 53-2-3. A child born out of wedlock to a parent killed in a truck crash is subject to the same proviso tied to Code Section 53-2-3. The notes on the official code page state that the 2025 amendment, effective July 1, 2025, added that proviso at the end of subsection (f).^[3]

Measure of recovery and expenses

Section 51-4-1(1) states that "Full value of the life of the decedent, as shown by the evidence" means that value "without deducting for any of the necessary or personal expenses of the decedent had he lived." Section 51-4-5(a) uses the same full value measure when the administrator or executor sues for a wrongful death, including one from a truck accident, because no person is entitled to bring the action under Code Section 51-4-2 or 51-4-4. Court decisions decide how the full value standard is applied to the evidence in a truck crash case, and this entry does not cover those decisions.^[1][4][3]

Under Section 51-4-2(e), no recovery had under subsection (a) "shall be subject to any debt or liability of the decedent or of the decedent's estate." When a surviving spouse or child recovers under Section 51-4-2(a) for a truck accident death that is a homicide under Section 51-4-1(2), subsection (e) keeps that recovery apart from the decedent's debts and the estate's liabilities.^[3][1]

Expenses are handled separately in Section 51-4-5(b), including expenses after truck crashes that meet its conditions. When death of a human being results from a crime or from criminal or other negligence, the personal representative of the deceased person is entitled under subsection (b) to recover for funeral expenses and medical expenses. The same subsection also reaches other necessary expenses "resulting from the injury and death of the deceased person." Where a truck driver's criminal or other negligence results in a death, that expense claim belongs to the personal representative under subsection (b), apart from the full value measure defined in Section 51-4-1(1).^[4][1]

Continuation of the action and release by the spouse

Section 51-4-2(b)(1) provides that if a surviving spouse brings an action for wrongful death under subsection (a) and dies while it is pending, "the action shall survive to the child or children of the decedent." Under Section 51-4-2(b)(2), if a child or children bring the action under subsection (a) after a truck accident death and one of the children dies while it is pending, the action survives to the surviving child or children. In a truck crash case under subsection (a), the death of the spouse or of one child during the action leaves the action with the persons these paragraphs name.^[3]

Under Section 51-4-2(c), the surviving spouse in a truck crash case under subsection (a) may release the alleged wrongdoer without the concurrence of the child or children or of any conservator, guardian, next friend or other authorized representative of them, and without any order of court. That power carries a condition, because the spouse "shall hold the consideration for such release subject to subsection (d) of this Code section and shall be accountable for same." When the alleged wrongdoer is a trucking company or a truck driver, a release given by the surviving spouse under subsection (c) carries the same holding and accounting duties.^[3]

According to the notes on the official code page, the 2022 amendment, effective May 2, 2022, inserted "conservator, guardian, next friend, or other authorized" near the beginning of subsection (c) and added "and shall be accountable for same" at the end. The same notes state that the 2024 amendment, effective July 1, 2024, revised punctuation in subparagraph (b)(3)(A) and in subsection (c).^[3]

Division of the recovery

Section 51-4-2(d)(1) provides that any amount recovered under subsection (a), including for a homicide in a truck crash, is divided equally, "share and share alike, among the surviving spouse and the children per capita," and the descendants of children take per stirpes. Notwithstanding paragraph (1), Section 51-4-2(d)(2) provides that the surviving spouse "shall receive no less than one-third of such recovery as such spouse's share." If there is no surviving spouse, Section 51-4-2(d)(2) divides the amount recovered under subsection (a), such as a recovery for a parent's death in a truck accident, equally among the children per capita, with the descendants of children taking per stirpes. When a truck accident death leaves a surviving spouse and children, the per capita division under paragraph (1) is subject to the surviving spouse's minimum of one-third under paragraph (2).^[3]

The notes on the official code page state that the 2022 amendment deleted a former clause at the end of paragraph (d)(1). Under that former clause, a minor child's share that equaled less than $15,000.00 was held by the natural guardian of the child, and a share of $15,000.00 or more was held by a guardian of the property of the child. The 2022 amendment also added the second sentence of paragraph (d)(2), on division among the children when there is no surviving spouse, and added the words "or of the decedent's estate" at the end of subsection (e). An editor's note on the same page states that Section 2 of Ga. L. 1998, p. 605, which the General Assembly did not codify, provided that the 1998 Act "shall be applicable to all wrongful death actions arising on or after July 1, 1998."^[3]

Settlements for minor children

Section 51-4-2(b)(3) applies when there is no surviving spouse and an action for wrongful death is brought by a minor child or minor children under subsection (a). In that situation, the "natural guardian, guardian, or next friend" of the minor child is required to become a conservator if necessary to receive payment of the settlement, and then to hold and use the settlement for the benefit of the minor, accountable as provided in Code Section 29-3-1. The same person is also required to obtain court approval of the settlement as provided in Code Section 29-3-3. In a truck crash case brought by minor children with no surviving spouse, the duties under Section 51-4-2(b)(3) attach to a settlement of the action. The official code page heads the text of Section 29-3-3 with the note "Effective July 1, 2026".^[3][2]

In a truck accident action brought by minor children under Section 51-4-2(b)(3), the gross settlement under Section 29-3-3(a)(1) is "the present value of all amounts paid or to be paid in settlement of a minor's claim," including cash, litigation expenses, attorney's fees and sums allocated to a structured settlement, and it counts the total paid on behalf of all settling parties. Under Section 29-3-3(a)(2), the net settlement is the gross settlement reduced by attorney's fees and expenses of litigation, along with legally enforceable liens, paid from the proceeds. The net figure is also reduced by the present value of amounts the minor receives after reaching the age of majority, and by the present value of amounts placed in a trust that the court approves or creates for the minor. If the minor has a conservator, Section 29-3-3(b) makes the conservator the only person who can compromise the claim, including a claim arising from a truck crash. Section 29-3-3 uses $25,000.00 as its dollar threshold in subsection (c) and as the cap in subsection (d)(2) on total distribution under a deferral arrangement before a minor reaches the age of majority. Under Section 29-3-3(c)(1), when the proposed gross settlement is at or below that threshold, the natural guardian may compromise the claim, or receive payment and hold and use it for the minor under Code Section 29-3-1, without becoming conservator and "without any court approval." Under Section 29-3-3(c)(2), when the proposed gross settlement is above that threshold and the net settlement is at or below it, the settlement is submitted to a court for approval and no conservator is required. The natural guardian who receives payment in that tier holds it for the minor and is accountable under Code Section 29-3-1. Under Section 29-3-3(c)(3), when the gross settlement and the net settlement are each above that threshold, a conservator is required to compromise the claim and receive payment, holds the proceeds for the minor under Code Section 29-3-1, and submits the settlement for approval. Where approval is required, the approving court is the probate court if no legal action has been initiated, or the court in which the action is pending if one has, with exclusive jurisdiction to approve except as subsection (g) provides. Under Section 29-3-3(d), after an approval order, the person acting for the minor is authorized, subject to Code Section 29-3-22, to compromise a contested or doubtful claim without receiving the consideration as a lump sum, including through a structured settlement or trust that the court approves or creates, or through deferral of part or all of the consideration until after the minor reaches the age of majority. Section 29-3-3(e) makes a settlement entered consistent with that Code section final and binding upon the parties, including the minor. Under Section 29-3-3(f), the court in which a truck crash action or other action is pending has discretion to hold a hearing on compliance, but no hearing is required if compliance is evident from the record. Section 29-3-3(g)(1) provides that once a settlement has been submitted to a court for approval, the action may not be voluntarily dismissed, or dismissed upon motion, except upon order of that court and on terms it deems proper. Under subsection (g)(2), the trial court retains exclusive jurisdiction to approve a settlement if the dismissal order specifically says so, or if the settlement is reached while the case is pending in the Court of Appeals or the Supreme Court. Under subsection (g)(3), if legal action was initiated but is no longer pending and the trial court did not retain jurisdiction, the settlement goes to the probate court for approval.^[2][3]

See also: Flanagan Law truck accident practice

See also

On related publications

• Georgia truck-crash law notes (truckaccidentlawyer.wiki)
• Liability and comparative fault in Georgia (caraccidentlawyers.wiki)