Detailed answer: How Georgia law treats oral agreements dividing wrongful-death proceeds and how to enforce or dispute them
Under Georgia law, a wrongful-death claim is a cause of action brought after a person’s death and prosecuted for the benefit of the decedent’s estate and the surviving family members. The claim itself and any settlement or jury award become assets of the decedent’s estate and are handled through the personal representative (executor or administrator) and, if necessary, by the probate court. See Georgia wrongful death statute: O.C.G.A. § 51-4-1 et seq. (text and context available through the Georgia Code resources: https://www.legis.ga.gov/).
Because proceeds belong to the estate, agreements about how to divide those proceeds can involve:
- the personal representative’s authority and duties;
- contract law among the beneficiaries or between beneficiaries and the personal representative; and
- probate court oversight, including petitions for settlement approval, accounting, or removal of a fiduciary.
Below is a practical, step-by-step outline of the legal process for enforcing or disputing an oral agreement about dividing wrongful-death proceeds in Georgia.
1) Determine who has the legal authority over the claim
Only the decedent’s personal representative has the authority to file, settle, or receive payment for a wrongful-death claim on behalf of the estate, unless the parties have an express written contract transferring that authority. If no personal representative is yet appointed, the probate court appoints one under Georgia probate rules. For general guidance about wrongful-death actions under Georgia law, see O.C.G.A. Title 51, Chapter 4: https://www.legis.ga.gov/.
2) Establish whether an enforceable agreement exists
Oral agreements can be enforceable in Georgia if they meet basic contract elements: offer, acceptance, consideration, and sufficient proof. But enforcing an oral promise to share settlement proceeds can be harder than enforcing a written agreement because proof depends on witness testimony and other circumstantial evidence. If the agreement required by its nature to be in writing under the statute of frauds (for example, certain long-term obligations), an oral promise may be barred — though most short-term division-of-proceeds agreements are not automatically within the statute of frauds.
3) Collect and preserve evidence proving the oral agreement
To enforce an oral agreement you will need evidence. Typical evidence that courts consider persuasive includes:
- contemporaneous emails, text messages, or notes describing the agreement;
- witness statements from people who heard the agreement;
- recordings or voicemail messages (be mindful of Georgia recording laws when obtaining recordings);
- bank records showing partial performance or transfers consistent with the agreement; and
- any written memorialization that followed the oral agreement (even a confirming email or memo).
Preserve all documents and names of witnesses as soon as possible. If funds were already disbursed contrary to the agreement, preserve bank and settlement paperwork and any communications about how the funds were used or allocated.
4) Administrative/probate remedies to try first
Because settlement proceeds are estate property, start in probate court when possible:
- Petition the probate court for an accounting of the wrongful-death proceeds and how the personal representative handled settlement or judgment funds.
- Ask the probate court to approve or reject the settlement (or to ratify an agreement) if the personal representative entered a settlement without full disclosure to interested parties.
- If the personal representative acted improperly or breached fiduciary duties, petition for removal and surcharge (monetary recovery) against the personal representative.
These steps often produce discovery and documents and may be a faster, lower-cost path than an immediate civil suit. Check local probate court procedural rules for filing requirements and forms.
5) Civil remedies if the probate route alone does not solve the dispute
If the oral agreement is among beneficiaries or between a beneficiary and a third party and not honored, you can generally file a civil lawsuit. Typical causes of action include:
- breach of contract (alleging the oral promise to divide proceeds was a contract and that the other side breached it);
- unjust enrichment (if someone received proceeds they agreed to share but declined to do so);
- accounting and declaratory judgment (asking a court to declare rights to funds and order an accounting of the proceeds); and
- fiduciary-breach claims against the personal representative if they mismanaged or misallocated estate assets.
Possible remedies include money damages, a constructive trust (a court-imposed obligation to hold or return funds), an order requiring an accounting, and court-ordered distribution consistent with the agreement if the court finds it enforceable.
6) Burdens of proof and evidence standards
Civil contract and unjust-enrichment claims are usually proven by a preponderance of the evidence in Georgia (more likely than not). The probate court may apply similar preponderance standards to accountings, but some discretionary probate actions may require more persuasive proof depending on the issue. Keep in mind that courts give weight to written agreements over oral ones; a later-written agreement or admission that memorializes the oral deal significantly strengthens an enforcement claim.
7) Timing and practical considerations
Act promptly. Evidence fades, witnesses relocate, and courts may approve distributions and close probate estates. Even if the wrongful-death claim itself had a statute of limitations, disputes about distribution typically involve separate contract or fiduciary-duty claims with their own deadlines. If you believe an oral agreement existed, preserve evidence and consult a probate or civil attorney quickly to identify applicable deadlines and remedies.
8) Alternative dispute resolution
Mediation or arbitration can be faster and less costly than full litigation. Courts and parties often prefer mediation in probate and family disputes. A mediated settlement can be reduced to a written agreement and then filed with the probate court for approval and enforcement.
9) When to seek legal help
Talk to a Georgia probate or civil attorney if any of the following apply:
- you are a beneficiary and the personal representative is refusing to share proceeds or won’t provide an accounting;
- you have evidence of an oral agreement that another party refuses to honor;
- funds have already been disbursed and you suspect wrongful allocation or misconduct; or
- the distribution is complex (multiple heirs, out-of-state heirs, liens, or competing claims).
An attorney can advise on whether the oral agreement is likely enforceable, help gather and preserve evidence, file the appropriate probate petition or civil complaint, and represent you in mediation or court.
Relevant Georgia statutory starting points
Helpful statutory references (starting points for research):
- Georgia wrongful-death statutes (Title 51, Chapter 4), which govern who may bring the action and its beneficiaries: see the Georgia Code and legislative resources at https://www.legis.ga.gov/ (search for O.C.G.A. Title 51, Chapter 4).
- Georgia probate and estates statutes (Title 53) for rules on appointment and duties of personal representatives and probate procedures: see https://www.legis.ga.gov/ (search Title 53).
Because statute sections and interpretations change, consult the Georgia Code and a lawyer for current, binding authority in your situation.
Final practical summary
- Identify the personal representative and confirm who holds settlement funds.
- Preserve all communications and documents that reference the oral agreement.
- Request an accounting from the personal representative; if refused, petition the probate court.
- Consider demanding payment in writing and attempt mediation.
- If necessary, file a civil action (breach of contract, unjust enrichment, or fiduciary-breach claims) or ask the probate court to enforce or undo distributions.
Disclaimer
This content is general information about Georgia law and is not legal advice. It does not create an attorney-client relationship. For advice about your specific situation, consult a licensed Georgia attorney who handles probate and wrongful-death matters.
Helpful Hints
- Document everything: save texts, emails, notes, and names of witnesses immediately.
- Ask for a written confirmation of any agreement. A short email or signed note is far easier to enforce than a purely oral promise.
- Request a formal accounting from the personal representative before pursuing litigation.
- Use mediation early — it often preserves family relationships and reduces costs.
- Be mindful of deadlines: act quickly to preserve evidence and legal rights.
- If possible, obtain legal counsel experienced in Georgia probate and civil litigation early in the process.