When filing a wrongful death lawsuit on behalf of a deceased child, divorced parents have certain rights when it comes to how they must share the wrongful death proceeds from the settlement or the jury award. If both parents are alive and wish to proceed with the claim, regardless of their marital status, then pursing recovery and receiving proceeds can be a smooth process. In the absence of this ideal situation, other provisions must be followed.
In the event that the deceased child does not leave behind a surviving spouse or child, then the child’s parents have the right of recovery. The parents will share this right jointly if they are still a married couple and are living together. If, however, either parent is deceased, then the surviving parent will have the sole right of recovery. If both the parents are living, but are divorced, separated, or do not live together, both parents will have the right of recovery, but that right will depend on the following:
If one of the deceased child’s parents refuses to proceed with the claim or cannot be located to proceed to recover damages for the wrongful death of a child, then the other parent has the right to hire a lawyer to represent both parents and the results of the lawsuit will be binding on both parents. When this situation occurs, the ultimate recovery should be shared equally by both parents. However, there are some exceptions to this. When the absent parent cannot be located, their share of the proceeds will be held for two years. After two years, the parent who initiated the recovery has the option to petition the court to receive the absent parent’s funds.
There are other options open to divorced parents when it comes to the right of recovery in a wrongful death suit. Either parent has the right to file a motion before trial requesting that the judge apportion any judgment awarded in the case. Doing so will require a hearing in which each parent will have the opportunity to show evidence of their relationship with the deceased child. The judge will use this hearing to determine the percentage of the judgment to be awarded to each parent based on the parent’s relationship with the child, considering such issues as permanent custody and support, as well as any other factors he or she finds significant.
If you have experienced the loss of a child due to another’s negligence and are considering filing a wrongful death lawsuit, you should consult an experienced wrongful death attorney who can advise you about how these laws apply to your case.
Robert Webb is an Atlanta personal injury lawyer with Webb & D’Orazio, a law firm specializing in Atlanta personal injury, malpractice, criminal defense, and business law. Learn more at Webbdorazio.com.
