can you stop an absent father from persuing a wrongful death lawsuit on behalf of his children rather than the deceased estate.

You have some complicated issues, as you well know. I suggest that you call me at 877-462-9732. I will take some information and put you in touch with someone locally who can help you.

Dennis Phillips, Esq.
www.inawreck.com

As I am licensed in Florida and Vermont, I cannot offer you specific advice concerning Georgia state law. However, generally, a wrongful death suit is brought forth by the personal representative or executor of the estate. Physical custody of the children would not necessarily have any bearing as to whom a Probate Court or the person's will determines to be the personal representative or executor.

I would respectfully suggest that you contact a competent personal injury attorney and explain the situation to the attorney. I'm sure they will be able to guide you on how to proceed.

In Georgia, there are two potential claims here: (1) a claim for wrongful death, with the damages being the "full value of the life" of the decedent, which in this circumstance would belong to the children; and (2) if the decedent had medical expense and conscious pain and suffering due to the fatal injury prior to dying, then the decedent's estate would have a "survival action" for those categories of damage.

The wrongful death claim for death of an unmarried parent in Georgia belongs to the deceased parent's child or children. If the children are minors, the lawsuit is brought by a responsible adult as the guardian or "next friend" of the children. Normally, if there is a surviving parent who has physical custody of the children, that would be the person to serve as "next friend" filing suit on behalf of the children. If suit has not been filed, however, it is theoretically possible for the grandparents to file suit on behalf of the children. If the father contests that, a judge would have to choose.

The estate's "survival action" can be brought by whoever is appointed as executor (if there is a will) or administrator (if there was no will) of the estate. If there is a will, it specifies who is appointed as executor, which is probably a parent. If there is no will, either her parents or the custodial parent of her children would be appointed administrator, so it could be a race to Probate Court. If the father of her children has not been appointed, then one of her parents may seek appointment.

If no suit has been filed and no executor or administrator has been appointed, then one of her parents may consider applying for appointment as executor or administrator, and then file suit for wrongful death as "next friend" of the children and for the survival action as representative of the estate. With the father's inability to handle basic financial issues, the judge may feel more comfortable having the grandparents in charge of financial recovery for their grandchildren.

That's a short answer for a problem with a lot of unknown variables that are not known to me. The grandparents should consult an experienced and knowledgeable trial lawyers who is familiar with the intricacies of these issues.