Who brings the action?
When death is caused by a wrongful act, neglect or default, the person who would have been liable had death not ensued is liable to an action for damages (Va. Code § 8.01-50(A) (opens in a new tab)). The action is brought by and in the name of the personal representative of the deceased person.
A family member does not file the suit in their own name. The personal representative does so for the benefit of the statutory beneficiaries.
Who are the statutory beneficiaries, in order?
Section 8.01-53(A) lists the classes of beneficiaries in order:
- The surviving spouse, children and grandchildren; parents only if they regularly received support or services from the decedent within 12 months before death.
- If none of the first class survives, parents, brothers and sisters, and a dependent relative.
- The spouse and parents.
- Survivors under the first or third class, together with any other relative who is primarily dependent on the decedent and a member of the same household.
- Intestate descent under § 64.2-200.
| Class | Who | Statute |
|---|---|---|
| 1 | Spouse, children, grandchildren; parents with regular support | § 8.01-53(A) (opens in a new tab) |
| 2 | Parents, brothers and sisters, dependent relative | § 8.01-53(A) (opens in a new tab) |
| 3 | Spouse and parents | § 8.01-53(A) (opens in a new tab) |
| 4 | Class 1 or 3 survivors plus a dependent relative in the same household | § 8.01-53(A) (opens in a new tab) |
| 5 | Intestate descent, § 64.2-200 | § 8.01-53(A) (opens in a new tab) |
What damages does § 8.01-52 allow?
The section lists the following categories:
- sorrow, mental anguish and solace, which includes society, companionship, comfort, guidance, kindly offices and advice;
- reasonably expected loss of income and services;
- expenses for care, treatment and hospitalization;
- reasonable funeral expenses;
- punitive damages for willful or wanton conduct.
How are damages distributed?
The personal representative pays costs and reasonable attorney's fees first, then the hospital, medical and funeral expenses. The remainder goes to the beneficiaries under § 8.01-53, "free from all debts and liabilities of the decedent".
When must a settlement be approved by a court?
The personal representative may compromise the claim with the approval of the court where the action was brought, or with the consent of a circuit court if no action is pending. A petition may come from the personal representative, a potential defendant or an interested insurer. The court may approve without a hearing unless it decides one is needed.
What is the deadline?
The action must be brought by the personal representative within two years after the death of the injured person (Va. Code § 8.01-244(B) (opens in a new tab)). The period excludes time an earlier suit was pending if it abated or was dismissed without a decision on the merits. A voluntary nonsuit under § 8.01-380 is not an abatement or dismissal.
Claims against a county, city, town or the Commonwealth carry written-notice rules. A lawyer can tell you whether they apply to a death. Use the claim deadline checker for each date.
How does a survival action differ?
A survival action continues the deceased person's own claim. Every cause of action survives the death of either party, but punitive damages are not awarded after the death of the party liable for the injury.
A wrongful death action differs in that it is brought by the personal representative for the statutory beneficiaries. Fault rules from the contributory negligence page still matter to both.
Which Roanoke lawyers can review a wrongful death claim?
These are sensitive matters with strict deadlines. See our picks below, and the claim timeline for the stages.
Our picks for you
Firms that handle these cases, chosen by our editors. Listing is not a ranking or an endorsement of results.
4.8 / 5 on GoogleFishwick & Associates PLC
Bicycle accident; Brain injury; Car accident; Motorcycle accident; Personal injury; Truck accident; Wrongful death.
Altizer Law, P.C.
Loeschen Law Firm PLLC
Frequently asked questions
Who is the personal representative?
The personal representative is the person who brings the action in the name of the deceased. Va. Code § 8.01-50(C) provides that the action shall be brought by and in the name of the personal representative of the deceased person. Who is appointed to that role is decided under other law, so ask a lawyer or the circuit court clerk.
Can siblings recover in a Virginia wrongful death case?
Sometimes. Under Va. Code § 8.01-53(A), if no spouse, child or grandchild survives, the next class includes parents, brothers and sisters, and a relative who is primarily dependent on the decedent and lives in the same household. The statute lists the classes in order, and later classes depend on who survives. Confirm the current text and the facts with a lawyer.
What damages does Va. Code § 8.01-52 list?
Section 8.01-52 lists sorrow, mental anguish and solace; reasonably expected loss of income and services; care, treatment and hospitalization expenses; reasonable funeral expenses; and punitive damages for willful or wanton conduct. Distribution of any recovery is governed by § 8.01-54. A lawyer can explain how these categories apply to your family's circumstances.
What if the person filed an injury suit before dying?
Va. Code § 8.01-25 provides that every cause of action survives the death of either party, though punitive damages are not awarded after the death of the party liable for the injury. How a pending suit converts or continues depends on the stage of the case, so ask a lawyer promptly.
Last reviewed · Reviewed by the Roanoke Crash Lawyer Guide editorial team