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Shapiro & Appleton

Who Can Recover in A Wrongful Death Action?

In Virginia, if a family member dies as a result of someone’s negligence, you have two years from the death of your loved one to file a wrongful death lawsuit. Not just anyone can file a lawsuit and recover a potential monetary damagres award or settlement. The Virginia legislature defined "relative" as any person related to the decedent by blood, marriage, or adoption. This also includes a stepchild of the decedent. A parent whose rights were legally terminated is not allowed to file a wrongful death action and is not entitled to a monetary award.

According to § 8.01-53, the order of priority for family members who may recover through a wrongful death lawsuit is as follows: 

  1. If the decedent has children and grandchildren: the award shall be distributed to the surviving spouse, children of the deceased, or grandchildren of the deceased;

  2. If there are none from category 1, then to the surviving parents, brothers and sisters of the deceased, and to any other relative who is primarily dependent on the decedent for support or services, and is also a member of the same household as the decedent;

OR

  1. If the decedent does not have children or grandchildren, but a surviving spouse and a surviving parent(s):  the award shall be distributed to the surviving spouse and parent(s);
  2. If there are survivors under category 1 or 3, the award shall be distributed to those that are listed, and to any other relative who is primarily dependent on the decedent for support or services and is also a member of the same household as the decedent; 
  3. If there are no surviving family members, the award is subject to escheat. Essentially, the Commonwealth would have a legal claim to the award.

A family member entitled to compensation (also referred to as a beneficiary) can decline his/her rights to the award. If a beneficiary does forgo his/her right to the award, the money shall be distributed to the other beneficiaries in the same class, or if there are none, to the next class of beneficiaries.

When is the Above Class Determined

The Court does not determine the above class of beneficiaries until the jury verdict is entered or judgment is rendered. This means that any person who is a brother or a sister at the time the jury states its decision or the court records its decision is a beneficiary eligible to receive a distribution. For example, if a child is adopted after the death of the decedent, but before the jury's verdict was entered, that child may recover damages as a statutory beneficiary.

The Distribution of The Award

The verdict must specify the amount or the proportion to be received by each of the beneficiaries.  The amount recovered is paid to the personal representative of the estate who must first pay the costs and reasonable attorney fees, then medical and funeral expenses. The remainder of the award is distributed to the beneficiaries as listed above.

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