Virginia Wrongful Death Lawyer

Who can bring a wrongful death claim in Virginia?

In Virginia, the lawsuit is filed by the personal representative of the estate. That person is usually named in a will or appointed by a court, and acts on behalf of the family members the law allows to recover.

The beneficiaries are set by statute, generally in this order:

• A surviving spouse, children and children of any deceased child
• If there are none of those, parents, siblings and certain other relatives, in some cases depending on whether they lived with or depended on the person who died

The personal representative does not keep the recovery. The court or a settlement divides it among the eligible family members. Choosing a personal representative who is organized and can communicate with the rest of the family helps, because that person signs court papers, receives updates from the legal team and must seek court approval for any settlement. Some families choose a trusted relative; others ask a professional to serve.

What damages can a Virginia family recover?

Virginia allows both financial and emotional damages in wrongful death cases. That includes losses that do not come with a receipt.

• Sorrow, mental anguish and the loss of comfort, guidance and companionship
• Lost income and financial support the person would have provided
• Lost services, protection, care and assistance
• Medical expenses from the final injury and funeral and burial costs
• Punitive damages in narrow cases involving willful or reckless conduct

If the death resulted from medical malpractice, Virginia's cap on total malpractice damages also applies. In other wrongful death cases, Virginia does not impose that cap.

How long does a Virginia family have to file?

A Virginia wrongful death claim generally must be filed within 2 years of the death. That deadline can arrive while the family is still grieving and handling the estate.

Appointing the personal representative also takes time. If there is no will, a family member usually must qualify through the circuit court clerk before the case can move forward. When a government vehicle or public property was involved, a written notice deadline of 6 months for local governments or 1 year for the Commonwealth may also apply, measured much earlier than the lawsuit deadline.

Can a Virginia wrongful death claim fail if the person who died was partly at fault?

Yes. Because Virginia uses contributory negligence, the defense can argue that the person who died was even slightly at fault and that their conduct helped cause the death. If a jury agrees, the claim can be barred.

Here is a simple illustration. A pedestrian is struck and killed at dusk on a four-lane road in Chesapeake by a speeding driver. The family's damages are estimated at $1,000,000. In a state with pure comparative fault, a 20% finding against the pedestrian for crossing outside a crosswalk would reduce the award to $800,000. In Virginia, if the jury finds the pedestrian was negligent and that it contributed to the death, the recovery can be zero. That is why investigating speed, lighting and the driver's attention is so important.

The last clear chance doctrine may also apply if the driver saw, or should have seen, the pedestrian in time to avoid the collision.

Is a criminal case the same as a wrongful death claim?

No. A criminal case is brought by the Commonwealth to punish a crime, such as DUI manslaughter. A wrongful death claim is a civil case brought by the family to recover compensation.

The two cases use different standards of proof. A criminal conviction requires proof beyond a reasonable doubt; a civil claim requires a lower standard. A family can win a civil case even if there is no conviction. A conviction can, however, provide useful evidence. Families should not wait for the criminal case to end, because the 2-year civil deadline keeps running.

How do we help Virginia families after a loss?

We handle the legal work so the family can focus on each other. That includes coordinating with the estate, investigating the cause of death and identifying every source of insurance.

Our wrongful death page explains how we approach these cases. Deaths from hospital errors often overlap with our Virginia medical malpractice work, and deaths in highway crashes may involve a truck accident investigation. For deadlines across all types of Virginia injury claims, see our Virginia injury law guide. We offer a free case review, and there is no fee unless we win.