Virginia Wrongful Death Claims

What is a wrongful death claim in Virginia?

In Virginia, a wrongful death claim exists whenever a death is caused by a wrongful act, neglect, or default that would have allowed the person who died to sue had he or she survived (Va. Code § 8.01-50(A)). The claim lets the family recover for its own losses: grief, lost income and support, lost care and guidance, and expenses.

The deaths we see most often in Northern Virginia come from highway and intersection crashes, pedestrians struck by drivers, impaired drivers, commercial trucks, unsafe apartment buildings and stairways, and fires. The statute applies even when the conduct that caused the death was also a crime. Virginia also allows the natural mother to bring a claim for a fetal death caused by another's wrongful act (§ 8.01-50(B)).

Who files a wrongful death lawsuit in Virginia?

A Virginia wrongful death action must be brought by and in the name of the personal representative of the person who died (§ 8.01-50(C)). Family members do not sue in their own names. The first step is usually having a family member qualify as the personal representative; we help families through that step and make sure the person who qualifies has authority to bring the death claim.

When the person who died was a child in a parent's custody under a court order or written agreement, the custodial parent has the first right to qualify, and may designate someone else (§ 8.01-50(D)).

Who are the beneficiaries of a Virginia wrongful death recovery?

Virginia distributes a wrongful death recovery to statutory beneficiaries in a set order of classes, not according to the will or the estate (Va. Code § 8.01-53(A)):

1. Spouse, children, and grandchildren. The surviving spouse, the children, and the children of any child who died earlier come first. If someone in this group survives, a parent may also share, but only if the parent regularly received support or services for necessaries from the person who died within the 12 months before death.
2. Spouse and parents. If there is a surviving spouse and a parent but no child or grandchild, the award goes to the spouse and the parent or parents.
3. Parents and siblings. If there is no spouse, child, or grandchild, the parents and brothers and sisters are beneficiaries.
4. Dependent household members. In each of these situations, any other relative who was primarily dependent on the person who died for support or services and lived in the same household can also share.
5. Heirs. If none of these relatives survive, the recovery passes to the heirs under Virginia's intestacy statute.

A few details matter in real families. "Relative" includes stepchildren and anyone related by blood, marriage, or adoption. A parent whose parental rights were terminated cannot be a beneficiary. A child adopted after the death can qualify in certain circumstances. And the class of beneficiaries is fixed when the verdict is entered or the judgment rendered, not on the date of death (§ 8.01-53(B)), so changes in the family while the case is pending can matter.

What damages can a family recover in a Virginia wrongful death case?

Virginia lets the jury award damages "as to it may seem fair and just," and the statute says the verdict shall include, but may not be limited to, damages for five categories (Va. Code § 8.01-52):

• Sorrow, mental anguish, and solace, which may include the loss of the person's society, companionship, comfort, guidance, kindly offices, and advice
• The reasonably expected loss of the person's income and of the services, protection, care, and assistance he or she provided
• Expenses for the care, treatment, and hospitalization of the person for the fatal injury
• Reasonable funeral expenses
• Punitive damages for willful or wanton conduct, or recklessness showing a conscious disregard for the safety of others

The statute allows expert testimony to prove lost income and services, and we often use economists and vocational experts to measure what the person would have earned and provided over a lifetime. Punitive damages are subject to Virginia's $350,000 total cap (Va. Code § 8.01-38.1). The punitive cap does not reduce the family's compensatory damages, and the jury is not told about it.

The jury must state separately the amounts it awards for medical and hospital expenses, funeral expenses, and punitive damages. The medical and funeral amounts are paid to the providers and funeral home that rendered the services (§ 8.01-52).

How is a Virginia wrongful death award divided among family members?

In Virginia, the jury may, and the court must, specify the amount or share each beneficiary receives, and if either side asks, the jury is instructed to make that division itself (Va. Code § 8.01-54). If the jury cannot agree on the split, or does not make one, the judge divides the award and may hear additional evidence to do it.

That means the division is not automatic or equal. A spouse who depended on the person's income, a young child who lost a parent's daily care, and an adult child living across the country may each receive different amounts. We prepare evidence of each beneficiary's relationship and loss, not just the total.

The statute also sets the order of payment. The personal representative first pays costs and reasonable attorney's fees, then the amounts the jury specifically allocated to hospital, medical, and funeral expenses, which go to the providers, and then distributes the rest to the beneficiaries. The beneficiaries' shares are free from the debts of the person who died (§ 8.01-54(C)), so creditors of the estate cannot reach them.

How are wrongful death settlements approved in Virginia?

A personal representative may settle a wrongful death claim, before or after suit is filed, only with court approval (Va. Code § 8.01-55). The beneficiaries must be convened, which can be done by endorsing the approval order or by receiving notice of the hearing. If the beneficiaries do not agree on how to divide the settlement, or one of them cannot legally agree, such as a minor, the court directs the distribution as a jury could.

When the at-fault driver's liability insurance is too small, a settlement for those limits can be approved while the family preserves its claim for underinsured motorist benefits under the family's own policies; see Virginia uninsured and underinsured motorist claims.

How long does a family have to file a wrongful death lawsuit in Virginia?

In Virginia, the personal representative must file a wrongful death action within two years after the date of death (Va. Code § 8.01-244(B)). Note that the clock runs from the death, not from the injury. If the injured person survived for a time and died before the personal injury deadline ran out without having sued, the death claim may still be brought within the two-year period after death (§ 8.01-244(A)).

Two other rules come up often. If the person who was hurt had already filed a personal injury lawsuit and then died from those injuries, the suit is amended into a wrongful death action, and there is only one recovery for the same injury (Va. Code § 8.01-56). And if the driver or other wrongdoer is criminally prosecuted, the time that prosecution is pending does not count against the family's deadline (Va. Code § 8.01-229(K)). Claims against a county, city, or town also require written notice within six months (Va. Code § 15.2-209).

Does contributory negligence apply in Virginia death cases?

Yes. A death claim based on negligence is subject to the same contributory negligence defense the person who died would have faced, and the Supreme Court of Virginia has held that the defense remains available even when the at-fault driver was convicted of involuntary manslaughter for the crash (Williams v. Harrison, 255 Va. 272 (1998)). A criminal conviction helps prove the driver's fault, but it does not end the civil fight. Because the person who died cannot tell his or her side, we rebuild the event with video, witnesses, and the police investigation, and in the most serious cases with a crash reconstruction expert.

What families should gather

• The death certificate and any medical examiner's report
• Names of the spouse, children, grandchildren, parents, siblings, and any dependent relatives in the household
• Pay stubs, tax returns, and benefits information showing the person's income and support
• Funeral and medical bills
• Every auto, homeowner's, and umbrella policy in the household
• Photos and records that show the person's role in the family: caregiving, coaching, school, and work
• Any letters from insurers; do not sign releases or give recorded statements before talking to a lawyer

We represent families throughout Arlington, Alexandria, Fairfax County, Loudoun County, and Prince William County. See our Virginia personal injury lawyers page for an overview, or our wrongful death page to compare Virginia with D.C. and Maryland.

Related reading

• Virginia wrongful death claims: who the beneficiaries are
• Wrongful death cases in Washington, D.C., Maryland, and Virginia
• Settling with one defendant in Virginia and what it does to the rest of the case
• A $2 million verdict stands: Virginia's dead man's statute
• A Virginia ruling upholds a family's wrongful death verdict against an assisted living facility
• DMV Injury Guide: what your case is worth
• DMV Injury Guide: deadlines and the timeline of a case

Responsible attorneys: Ryan C. Posey and Jacob M. Lebowitz. Posey Lebowitz PLLC, 3221 M Street NW, Washington, DC 20007.