Claims Against Estates of Deceased Defendants in Georgia

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When the person who caused an injury dies, the claim does not die with that person. Georgia keeps a claim for injury to the person alive against the wrongdoer’s personal representative, bars punitive damages against a representative sued after a wrongdoer dies before suit, requires a substitution motion within 180 days when a defendant dies during the case, delays suits on debts against a representative for six months after qualification, and stops the limitation clock for creditors of the estate while no one represents it.

Survival of the Claim

OCGA 9-2-41 states that “[n]o action for a tort shall abate by the death of either party, where the wrongdoer received any benefit from the tort complained of; nor shall any action or cause of action for the recovery of damages for homicide, injury to the person, or injury to property abate by the death of either party.” It continues: “In case of the death of the defendant, the cause of action shall survive against said defendant’s personal representative. However, in the event of the death of the wrongdoer before an action has been brought against him, the personal representative of the wrongdoer in such capacity shall be subject to the action just as the wrongdoer himself would have been during his life, provided that there shall be no punitive damages against the personal representative.” The punitive damages proviso sits in the sentence about a wrongdoer who dies before an action has been brought.

When the Defendant Dies During the Case

Under OCGA 9-11-25(a)(1), “[i]f a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties,” and the motion “may be made by any party or by the successors or representative of the deceased party.” The subsection sets a limit: “Unless the motion for substitution is made not later than 180 days after the death is suggested upon the record by service of a statement of the fact of the death, the action shall be dismissed as to the deceased party.”

The Six-Month Wait

OCGA 53-7-42(b) provides: “No action to recover a debt due by the decedent shall be commenced against the personal representative until the expiration of six months from the date of qualification of the first personal representative to serve.” The bar is written for an action to recover a debt due by the decedent.

Time Not Counted While No One Represents the Estate

Two sections stop the clock in different directions. For creditors, “[t]he time between the death of a person and the commencement of representation upon his estate or between the termination of one administration and the commencement of another shall not be counted against creditors of his estate, provided that such time does not exceed five years” (OCGA 9-3-93). For the estate’s own claims, the same period “shall not be counted against his estate in calculating any limitation applicable to the bringing of an action,” also up to five years (OCGA 9-3-92). Outside those sections, an action for injuries to the person has two years from the date the right of action accrues (OCGA 9-3-33).

For example, imagine a person injured on March 1, 2027, by someone who dies on June 1, 2027, with no representative qualifying until June 1, 2028. The two-year period would otherwise end on March 1, 2029. If OCGA 9-3-93 applies to the injured person’s claim, the twelve months between the death and the qualification are not counted, and the period would end on March 1, 2030. If OCGA 53-7-42(b) also applies, no action on the claim could be commenced against the representative before December 1, 2028.

Frequently Asked Questions

What if the injured person dies before the case ends?
“The cause of action, in case of the death of the plaintiff and in the event there is no right of survivorship in any other person, shall survive to the personal representative of the deceased plaintiff” (OCGA 9-2-41).

How must a motion to substitute a deceased defendant be served?
Together with the notice of hearing, it must be served on the parties as provided in OCGA 9-11-5 and on persons who are not parties in the manner provided in OCGA 9-11-4 for service of a summons (OCGA 9-11-25(a)(1)).

What if only one of several defendants dies?
Where the right sought to be enforced survives only against the surviving defendants, “the action does not abate,” the death is suggested upon the record, and “the action shall proceed in favor of or against the surviving parties” (OCGA 9-11-25(a)(2)).

Does an estate pay its debts all at once?
Not necessarily. The personal representative is not required to pay debts until six months after the first representative qualifies, any partial payment “shall be pro rata on debts of equal priority,” and “[s]uccessive dividends to creditors shall be made at the end of every year until the estate shall be paid out” (OCGA 53-7-42(a)).

How long can the clock stay stopped?
No longer than five years. “At the expiration of the five years the limitation shall commence” (OCGA 9-3-93).

  • OCGA 9-2-41
  • OCGA 9-11-25(a)(1), (a)(2)
  • OCGA 53-7-42(a), (b)
  • OCGA 9-3-92; OCGA 9-3-93; OCGA 9-3-33

Disclaimer

This article provides general information about the Georgia statutes that bear on claims against the estate of a deceased defendant. It is not legal advice and does not create an attorney-client relationship. The deadlines and waiting periods depend on the dates of death and appointment, and the statutes may change. Anyone with such a claim should consult a licensed Georgia attorney promptly about the particular situation.

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