It’s devastating to lose someone due to another person’s negligence. And, if the liable person has also died, then you might feel like there’s no one to hold accountable for your needless loss.
You cannot directly sue somebody that has died, but you might be able to sue their estate for pain and suffering or wrongful death.
We will answer the question: Can you sue an estate for pain and suffering? And we’ll explain what you need to do if you’re going to file such a lawsuit.
Can You Sue a Dead Person?
No, you can’t sue a deceased person directly.
However, you can often pursue a legal claim against their estate. An estate is a legal entity created to manage the deceased person’s assets and liabilities.
In Georgia, you may be able to sue a deceased person’s estate for pain and suffering if their actions led to your injury. This is typically done through a wrongful death lawsuit or a survival action.
- Wrongful Death Lawsuit: This type of lawsuit seeks damages for the loss suffered by the deceased person’s loved ones, such as loss of companionship, emotional distress, and financial support.
- Survival Action: A survival action allows the deceased person’s estate to pursue claims that the person could have brought had they lived, including pain and suffering.
“Is it callous to sue the estate of a deceased person? I don’t think so. If that person caused serious suffering or death, they should be held accountable for their negligent actions even if they’re no longer alive. Remember, you’re not necessarily suing that person’s grieving family; you’re suing the legal entity, which is their estate. The estate should pay you the money that you’re rightfully owed.”
-Adam R. Gaslowitz; Founding Partner at Gaslowitz Frankel
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Georgia Laws
Here are the key Georgia laws that govern estate claims of this nature:
O.C.G.A. § 51-4-1: Wrongful Death Act
This statute allows the surviving spouse, children, or parents of a deceased person to bring a wrongful death lawsuit against a negligent party. In such cases, damages may include:
- Loss of support and services: Financial losses incurred due to the deceased’s death.
- Loss of consortium: Loss of companionship, love, affection, and sexual relations.
- Pain and suffering: Physical and emotional pain experienced by the deceased before death.
O.C.G.A. § 9-2-41: Survival Action
This statute allows the estate of a deceased person to bring a lawsuit for injuries sustained before death. This can include claims for:
- Medical expenses: Costs incurred due to injuries.
- Lost wages: Income lost due to injuries.
- Pain and suffering: Physical and emotional pain experienced by the deceased before death.
Georgia Statute of Limitations
In the State of Georgia, you are typically given 2 years (after the date of injury or death) to file a wrongful death or survival action lawsuit.
It’s important to note that the specific circumstances of each case will determine the applicable laws and the potential for recovery.
What Does ‘Pain and Suffering’ Mean?
Pain and suffering is a legal term that refers to physical and emotional distress experienced by an injured person. In the context of suing an estate, it encompasses both physical and mental anguish.
Physical pain includes physical discomfort, such as pain from injuries. Emotional suffering includes mental anguish, emotional distress, and loss of enjoyment of life.
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The Role of Insurance
Insurance can significantly impact the outcome of a lawsuit against an estate. If the deceased person (whose estate you’re suing) had insurance policies, such as auto insurance or homeowners insurance, these policies may cover liability claims.
Here’s how insurance can influence a lawsuit:
- Policy Limits: Insurance policies typically have specific limits on the amount of coverage they provide. If the damages exceed the policy limits, the plaintiff may seek additional compensation from the estate’s assets.
- Insurance Company Involvement: Insurance companies often defend their insured parties, including deceased individuals. They may contest claims, negotiate settlements, or litigate the case.
- Complexities of Insurance Claims: Insurers may have complex rules and procedures for handling claims, especially in cases involving wrongful death. An experienced attorney can help navigate these complexities.
It’s important to consult with an attorney to understand the specific insurance policies involved in a case and how they may impact the potential recovery.
“Estate litigation is very complex due to the convoluted nature of estate structuring and probate. Some estates may also fight vigorously against lawsuits. Always consult with a fiduciary attorney before filing a lawsuit so you can chart an effective legal strategy.”
-Craig M. Frankel, Founding Partner at Gaslowitz Frankel
Related Blog: Insurance: What You Need to Know and How It Fits In Your Financial Planning
Thinking About Suing an Estate? Get Legal Consultation Today
Filing a wrongful death or survival action lawsuit is highly complex, and you should always consult with a fiduciary lawyer to receive legal guidance before you move forward with a lawsuit.
If you’re filing a lawsuit in Georgia, you can set up a consultation with Gaslowitz Frankel today to discuss your case. Our fiduciary litigation team has proven results in Georgia estate litigation and we’ve achieved strong outcomes through trial, mediation, and arbitration. Our friendly team is ready to guide you through every step of the legal process to help you seek justice for your loved one.
