...section (d) of this Code section. "(d) The widow shall hold any amount recovered under subsection (a) of this Code section subject to the law of descents, as if it were personal property descending from the decedent to her and to his children." OCGA § 51-4-3, which is applicable where the mother is killed, provides in pertinent part as follows: "(a) The husband and the legitimate and illegitimate child or children may recover for the homicide of the wife or mother....

...t the alleged tort-feasor. However, any of such persons not duly served as provided in this paragraph shall have a right against the parties plaintiff for his or their proportionate part of the recovery in the action." This latter Code section, OCGA § 51-4-3, favors the children of a deceased mother leaving a husband over children of a deceased father leaving a wife as follows: (a) Under OCGA § 51-4-3 (a) children have an action for the wrongful death of their mother and are parties to the litigation (coplaintiffs with the widower), whereas under OCGA § 51-4-2 (a) children have no right to institute an action for the wrongful death of their father and are not parties to the widow's suit; (b) Under OCGA § 51-4-2 children can refuse to settle the claim, whereas under OCGA § 51-4-2 (c) they lack the power to reject settlement (as happened here); (c) Under OCGA § 51-4-3 children receive their share of the judgment directly, whereas under OCGA § 51-4-2 (d) they must rely on the widow to pay the proceeds over; (d) Under OCGA § 51-4-3 children share in the recovery on a per capita basis along with the husband, whereas under OCGA § 51-4-2 (d) where there are five or more children (or representatives of deceased children), the wife receives one-fifth of the recovery and the children's shares are reduced....

...In both Ins. Co. of North America v. Russell, and Edenfield v. Jackson, supra, discriminatory disqualifying conditions upon the right to recover based upon the sex of the deceased were found to be invalid. Here, we have two statutes, OCGA §§ 51-4-2, 51-4-3, which base the right of recovery for the wrongful death of a parent solely on the sex of the parent who has been wrongfully killed....

...Where the deceased is survived by a spouse, OCGA § 51-4-2 deprives those children whose fathers have been wrongfully killed of rights granted to children whose mothers have been wrongfully killed. Because the rights of children whose mothers have been wrongfully killed are protected by OCGA § 51-4-3 in ways in which the rights of children whose fathers have been wrongfully killed are not protected, we find that OCGA § 51-4-2 deprives children of deceased fathers who leave widows equal protection of law in violation of Art. I, Sec. I, Par. II of our Constitution. Henceforth, children of deceased fathers who leave widows shall be afforded the rights afforded children under OCGA § 51-4-3....

...in this case. Were we to do so, children whose fathers have been wrongfully killed would have no cause of action for wrongful death, whereas children whose mothers have been wrongfully killed would have causes of action for wrongful death under OCGA § 51-4-3....

...Co. of North America v. Russell, 246 Ga. 269 (2) (271 SE2d 178) (1980), we overrule defendants' motion and adhere to our holding that "Henceforth, children of deceased fathers who leave widows shall be afforded the rights afforded children under OCGA § 51-4-3." Motion for rehearing denied....

...This is not merely the survival of the rights of the deceased; the rights to death benefits do not accrue until the death of the worker. In this respect, the workers' compensation scheme is analogous to the right of recovery under the wrongful death statute, OCGA §§ 51-4-2 and 51-4-3....

...tatute unconstitutional. Her argument is that because the statute confers exclusive standing upon surviving spouses it denies equal protection to children of deceased parents. The 1985 amendment to OCGA § 51-4-2 and the legislature's repeal of OCGA § 51-4-3 corrected the constitutional infirmity which caused this court to strike down § 51-4-2 in Tolbert v. Murrell, 253 Ga. 566 (322 SE2d 487) (1984). The unconstitutional infirmity lay in the provision that children of deceased mothers, whose rights were governed by OCGA § 51-4-3, were given greater rights to pursue actions for the wrongful death of their mothers than were children of deceased fathers, whose rights were governed by OCGA § 51-4-2....

...Dixie Constr. Co., supra, 205 Ga. 415, however, this court reaffirmed prior cases stating that "child or children" in this section did not include illegitimates. [2] In so holding, the court relied in part on the fact that the next Code section, OCGA § 51-4-3 (Code Ann....

...OCGA § 51-4-2, the statute declared unconstitutional in Tolbert, supra, denied children a right of action for their father's death when the father's spouse survived him. The statute prevented children of a deceased father from blocking a settlement by the surviving spouse in such a case. OCGA § 51-4-3, the alternative method provided by Tolbert for pursuing a wrongful death action, vested a single action jointly in the children and the surviving spouse. Accordingly, if Tolbert is applied non-retroactively, [2] OCGA § 51-4-2 controls Ms. Grazzini's claim, and she has no interest in the action for Mr. Rasmussen's death. If Tolbert is applied retroactively, however, OCGA § 51-4-3 controls, and Ms....

...choice we might make in this case. Chevron Oil Co. v. Huson, 404 U. S. 97, 106-107 (92 SC 349, 30 LE2d 296) (1971). Our statement in Tolbert, supra at 571, that "the rights of children whose mothers have been wrongfully killed are protected by OCGA § 51-4-3 in ways in which the rights of children whose fathers have been wrongfully killed are not protected," shows that the constitutional infirmity in OCGA § 51-4-2 lay not in a failure to treat children on equal footing with their parents, but...