After a loved one dies because of another person’s carelessness, filing deadlines (the statute of limitations) may be the last thing a family wants to think about. Still, waiting too long can end a claim before the facts are heard. A Virginia Beach wrongful death attorney can review the date of death and any event that may pause or shorten the filing period.
Virginia law usually gives the personal representative of the estate two years from the date of death to file a wrongful death lawsuit. In practice, several rules can change how much time is available.
In addition, if a personal injury is caused by negligence and the person then dies some number of days or weeks or months later, there is a separate exception allowing the filing a “survival action” for the personal injury rather than the wrongful death and that is addressed in a separate article on our law firm website, because a series of tolling exceptions allows for a survival action to be filed as long as four years after the initial negligent act that caused injury and then death.
What Is the Usual Two-Year Deadline?
Virginia Code § 8.01-244 states that a wrongful death suit must typically be filed by the personal representative no more than two years after the injured person dies. The deadline normally starts on the date of death, not the date of the accident or negligent act.
For example, a person may suffer serious injuries in a crash and die several months later. The wrongful death filing period usually begins on the day the person dies. The time between the crash and the death can still be important because evidence may disappear while the family is focused on medical care.
The person filing the lawsuit must also have legal authority to act for the “estate,” which is the legal definition of who represents the deceased person. A spouse or adult child cannot simply file in an individual name because that person is a beneficiary only.
Virginia, like many states, requires that a circuit court clerk approve, via a legal certificate, who will be the personal representative or administrator of the deceased person, and there are rules in every state on who may be appointed, when they may be appointed, and other legal formalities.
Problems with the appointment of a personal representative can become serious when the deadline is close because wrongful death cases must be filed under the name of the personal representative or administrator. It’s a filing formality; the administrator or personal representative doesn’t get any higher proportion or amount of any resulting settlement, so it should not be confused with who the legal beneficiaries of a deceased person are, which is governed by the Virginia wrongful death statute.
Does Late Discovery Restart the Clock?
Virginia does not have a broad discovery rule for ordinary personal injury claims. In many cases, the filing period begins when the injury occurs rather than when the injured person learns what caused it. A family should not assume that discovering negligence months later creates a new two-year wrongful death statute of limitations period.
There are narrow exceptions. Virginia medical malpractice law may extend the time to file the underlying personal injury claim in cases involving a foreign object left in a patient’s body. An extension may also apply when fraud or concealment prevented discovery of the injury. A separate rule covers certain failures to diagnose cancer or a schwannoma.
These exceptions do not mean every delayed diagnosis or hidden cause of death receives extra time. The facts must fit the statute. The wrongful death deadline and the deadline tied to the underlying medical injury must be examined together. You should consult a skilled and experienced Virginia wrongful death lawyer in any such complicated statute of limitations analysis.
Can a Government Claim Have an Earlier Deadline?
Yes. A claim involving a public agency may require written notice long before the normal two-year lawsuit deadline arrives. For a negligence claim against a Virginia county, city or town, written notice generally must be received within six months after the claim accrues. The notice must describe the claim and state when and where the injury occurred.
Claims against the Commonwealth or a transportation district follow another process. Written notice is generally required within one year after the claim accrues. A lawsuit under the Virginia Tort Claims Act must also fit a separate filing window tied to the notice date and the date the claim accrued.
These rules do not create liability where sovereign immunity applies. They are additional requirements for claims that would otherwise be allowed. A Virginia Beach wrongful death attorney can identify the correct public defendant and determine whether a notice rule applies.
Does a Minor Beneficiary Automatically Get More Time?
Not usually. Virginia’s general tolling law can protect a person who is legally entitled to bring a claim and is a minor when the claim accrues. A wrongful death lawsuit is different because the personal representative brings it for the benefit of the statutory beneficiaries.
A minor child may receive part of a wrongful death recovery, but the child’s age does not normally pause the two-year filing period. Courts applying Virginia law have explained that the beneficiary is not the person authorized to bring the wrongful death action. The personal representative must still act on time.
Minor statutes can affect other claims arising from the same event. It may also affect certain government notice periods because Virginia’s notice statutes refer to disability tolling. The result depends on who owns the claim and who has authority to file it. Families should not rely on a child’s age as an automatic extension.
Can a Criminal Case Pause the Civil Deadline?
For a wrongful death cause of action accruing on or after July 1, 2025, a criminal prosecution arising from the same facts may pause the wrongful death limitations period.
This rule may apply after a fatal drunk driving crash or another event that leads to criminal charges. It can extend the filing period, but it is not a reason to delay an investigation. Witness memories can fade, and records may become harder to obtain.
The start and end of the prosecution must also be calculated correctly. A police investigation is not necessarily the same as a pending criminal prosecution. Court records should be reviewed before a family relies on this tolling rule.
What Happens After a Nonsuit or Dismissal?
A timely wrongful death case may end without a decision on the merits when an attorney or client exercises the Virginia nonsuit statute, which is a special rule of Virginia law that can extend the statute of limitations by discontinuing a case and allowing for up to six months to refile the same case. Virginia law may then allow another action within the remaining part of the original period. A voluntary nonsuit generally allows the plaintiff to refile within six months from the nonsuit order or within the original limitations period, whichever is longer.
This protection applies only after a case was properly filed, before the nonsuit is exercised. It does not fix every problem with a defective lawsuit. Filing in the wrong name or without a qualified personal representative before the non-suit is exercised can create a dispute over whether the first action was valid.
Why Should a Family Act Before the Deadline Is Clear?
An attorney may need to obtain medical records and accident reports. The estate may need a personal representative, and that person must understand the administrator’s duties in a wrongful death case. A government notice may also need to be prepared before a lawsuit can begin.
Starting early gives the legal team more time to preserve video and inspect physical evidence. It also allows witnesses to be contacted sooner. In one recent case, Shapiro, Washburn & Sharp obtained a $282,000 wrongful death settlement after a fatal drunk driving crash. The driver was charged with involuntary manslaughter, while the firm pursued the family’s civil claim and identified three insurance policies that provided coverage. This shows how criminal charges and a wrongful death claim can arise from the same event.
Waiting for the second anniversary of the death can leave little room to correct a mistake. Shapiro, Washburn & Sharp helps families examine the rules that control Virginia wrongful death claims. To speak with a Virginia Beach wrongful death attorney, call or fill out the online contact form as soon as possible so the deadline can be calculated from the facts rather than assumed from the calendar.