Overruling prior decisions of the Georgia Court of Appeals, the Georgia Supreme Court held that an adult child of a decedent may bring a wrongful death claim under equity jurisdiction where the surviving spouse is estranged and refuses to bring the claim. Previously, Georgia courts relied on a strict interpretation of the wrongful death statute and only applied equity jurisdiction to allow the minor children of a decedent to bring a wrongful death claim where the surviving spouse was estranged or had no intention to pursue the claim themselves. Expanding the basis for which courts may apply equity jurisdiction to allow an otherwise improper wrongful death plaintiff to bring an action, the Georgia Supreme Court reasoned there was no distinction either in the statutes or in the cases establishing equity jurisdiction for distinguishing between a minor child and an adult child. The Court reiterated that equity jurisdiction applies when the application of a court’s equitable powers is necessary to preserve the plaintiff’s rights where the plaintiff otherwise has no remedy at law. Accordingly, the adult child of the decedent in this case will be allowed to proceed with the wrongful death claim even though the decedent had a surviving spouse.

Take-home: Georgia courts will now apply equity jurisdiction to allow an adult child to bring a claim for the wrongful death of a parent where a surviving spouse is estranged and declines to bring the claim himself.

The case is Hamon v. Connell, __ S.E.2d __, 2023 WL 1786090 (Ga.Sup.Ct. Feb. 7, 2023).