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The death of a loved one is a tragedy, especially when allegations of wrongdoing exist surrounding the death, and the decision to bring a lawsuit is a deeply personal matter. But who bears the burden of making that decision—the deceased’s spouse, their child, or another loved one? The answer may depend on the court’s application of equitable principles to preserve the claim.

Georgia’s Wrongful Death Act grants a decedent’s surviving spouse the right to pursue a wrongful death claim. In the event there is no surviving spouse, that right is granted to the decedent’s “child or children, either minor or sui juris[.]” Nevertheless, under certain circumstances, Georgia’s courts have applied equitable exceptions to authorize a decedent’s children to bring an action in cases where the surviving spouse is unwilling or unable to do so. The application of these equitable principles created a spousal standing exception to the Wrongful Death Act, allowing someone other than the decedent’s surviving spouse to pursue a wrongful death claim to benefit the decedent’s children.