In a Virginia wrongful death case, it is important to understand that the law, and not the will of the decedent (the person who has passed away), will determine who recovers money as beneficiary of a wrongful death claim. What this means is that the funds recovered as claim will be distributed as if the deceased did not leave a will and pursuant to what the statute dictates. The Virginia Code § 8.01-53 describes the potential beneficiaries of a wrongful death lawsuit in the state.
Beneficiaries in Specific Scenarios
- If at the time of death, the decedent was married but had no children, the entire proceeds from the wrongful death claim will go to the spouse.
- If the decedent has a surviving spouse and children, the compensation amount will be equally divided between them, subject to the condition that the at least one-third of the total amount will go to the spouse. For instance, if the decedent was married with three children, one-third of the recovered damages would go to the surviving spouse and the remaining two-third will be shared between the three children.
- If the decedent was single and had no children, the parents of the decedent will receive the entire amount recovered from the lawsuit.
In some situations, more complex issues may come up. Under exceptional circumstances, the decedent’s siblings may be entitled to receive the compensation amount. Sometimes a parent who did not maintain any relationship with the decedent or failed to pay child support may forfeit the right to receive wrongful death compensation.
Who can File a Wrongful Death Lawsuit in Virginia?
While the order of priority to file a wrongful death claim in Virginia can vary according to the circumstances, in general the following order is followed:
Surviving Spouse
The surviving spouse will usually have the first right to file a wrongful death lawsuit in Virginia. If the spouse is legally incapacitated (such as suffers from a mental illness), they could lose their right to pursue a claim. The spouse’s right may also be denied in some other situations.
For example, if the couple had been separated for a long time prior to the incident of wrongful death or were in the middle of a divorce proceeding, the court may ask another family member to file the claim. The surviving spouse may also choose to waive their right of priority.
Children
In absence of the surviving spouse, the decedent’s children get the highest right to bring a wrongful death claim. Where the children are minors, a guardian of the children will be appointed by the court for the purpose of filing a lawsuit.
Parents
If the decedent was unmarried with no children or was a minor, his or her parents will have the right to file a case of wrongful death. If the decedent was a minor and the parents are divorced, the primary custodial parent will be able to pursue the wrongful death claim.
Other Family Members
If none of the family members (as listed above) is available, other family members of the decedent who are going to inherit the decedent’s estate would be entitled to pursue a wrongful death lawsuit.
Executor
If the decedent had left a will and named an executor, that individual gets the right to bring a wrongful death action on behalf of the estate.
Administrator
If the decedent left no will, the court will appoint an administrator of the decedent’s estate who will bring a lawsuit in the name of the estate. Sometimes multiple parties may apply to the court to be appointed as administrator. In that case, the court will look at factors such as their abilities and their relationship with the decedent before determining who is most qualified to act as the administrator.
Other Notable Issues
In Virginia, the statutory beneficiaries do not file the wrongful death lawsuit directly, but the personal representative (executor or administrator) of the decedent’s estate files the suit on their behalf. It is also worth noting that the individual who gets the right to file a wrongful death lawsuit is the person who can choose an attorney to pursue the claim.
Correlating with this, the party who ultimately brings the wrongful death action is not necessarily going to receive a part of the funds recovered through settlement or a verdict. The right to file a lawsuit does not automatically give the right to collect damages.
If multiple parties file a wrongful death claim, the courts in Virginia will consolidate the cases and will decide who will be in charge of the litigation. Only one wrongful death lawsuit is permitted to be filed under Virginia law.
Legal Help from an Experienced Virginia Wrongful Death Attorney
Losing a loved one in an accident due to another’s fault can be emotionally and financially devastating for the deceased’s family. In this difficult time, you need sound legal support from a trusted wrongful death lawyer in Virginia who can hold the wrongdoers accountable for their negligence. The lawyers at Shapiro, Washburn & Sharp are committed to helping you obtain maximum compensation. Call us at (833) 997-1774 to set up a free consultation with one of our attorneys.
References:
https://www.hsinjurylaw.com/library/the-four-elements-of-a-wrongful-death-claim.cfm
https://www.hsinjurylaw.com/case_results/virginia-personal-injury-wrongful-death-in-va/
https://www.hsinjurylaw.com/practice_areas/accidents-resulting-in-a-wrongful-death.cfm