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Which Family Members Can Sue for Wrongful Death in Virginia?

Virginia Family at Grave of Loved One - Wrongful DeathOur law practice at The Jeff Brooke Team is dedicated to helping personal injury victims and their families. Tragically, some of our cases involve death of the victim, either in an accident or afterwards. In those cases, a lawsuit may be filed under Virginia’s Wrongful Death Act. One question our clients commonly ask is which family members can sue for wrongful death in the state. Below, we discuss the guidelines that generally apply to Virginia wrongful death cases and answer questions about which family members can sue.

What Is A Wrongful Death Lawsuit?

A wrongful death lawsuit is a court action filed after someone dies, when the death may have been caused by another person. In Virginia, wrongful death cases are governed by the provisions of a state statute.

The Wrongful Death Act provides that an action for damages can be brought if a “wrongful act, neglect or default” of another person or corporation caused the death, and if the injured person would have been able to file a personal injury action had he or she survived. The statute includes the right to bring an action for the wrongful death of an unborn child.

Wrongful death cases are often brought when someone dies in a car accident that was another person’s fault. But a wrongful death can occur as the result of other circumstances as well, including:

Can Grandparents, Parents and Siblings Sue for Wrongful Death in Virginia?

The answer to the question “Which family members can sue for wrongful death?” is somewhat complicated — as many legal questions are. Under the statute, only one person is actually able to file the lawsuit: the personal representative of the deceased person. The only exception is in the case of an unborn child, where the natural mother can bring the lawsuit (with limited exceptions and qualifications).

A personal representative is the person named in a will to administer the estate of a deceased individual or the person appointed by the court to administer the estate if there is no will. State law determines who is eligible to apply to be appointed as the personal representative to administer an estate when someone dies without a will.

While it is the personal representative who actually files the wrongful death action, the statute designates beneficiaries who can share in the amount recovered in a wrongful death lawsuit. When a settlement or verdict is won, the personal representative first pays costs and attorney’s fees, and any hospital, medical, and funeral expenses. Then the remaining proceeds are distributed to the deceased person’s beneficiaries as specified in the statute.

In the Wrongful Death Act, distribution of damages is accomplished in an order of priority to beneficiaries of the deceased person. Only if there are no members in a designated group will members of the next group be entitled to recover. The priority order set by the statute is:

  • Surviving spouse and children or grandchildren of the deceased individual;
  • Surviving parents and siblings or a relative who shared the deceased person’s household and was a dependent of the deceased person;
  • Any surviving family member entitled to inherit the estate under Virginia’s intestacy laws.

In other words: If the deceased person is survived by a spouse, children, or grandchildren (the first category above), then parents and siblings (the second category above) are not entitled to share in the proceeds of the wrongful death lawsuit. A grandparent will only be entitled to share if: 1) there is no one in the first category, and 2) the grandparent lived in the deceased person’s household and was a dependent or there is no one in the second category.

If there is a jury verdict in a wrongful death case, the verdict itself may specify the amount or proportion to be received by each of the beneficiaries. If the jury does not make the allocation, the judge must specify the distribution before entering judgment. The distribution is fixed either when the jury makes the specification or when judgment is entered, if the judge specifies the distribution

If there is a settlement agreement in a wrongful death case instead of a jury verdict, the settlement agreement itself will normally specify distribution of the proceeds. The statute gives the personal representative the authority to agree to a settlement of a claim but requires that damages be distributed as provided in the statute.

The rules described above are those that generally apply to a wrongful death action in Virginia. In any given case, the specific facts and circumstances will control distribution of the proceeds in a wrongful death action. There are various other detailed statutory provisions that may apply in an individual case.

Talk With a Trusted Virginia Beach Personal Injury Attorney About a Wrongful Death Lawsuit

If you lost a loved one in an accident that was caused by someone else’s negligence or wrongful act, you may be entitled to recover in a wrongful death lawsuit. Jeff Brooke, a trusted Virginia Beach personal injury attorney, is dedicated to helping injured victims and their families. You should contact The Jeff Brooke Team before you have any discussions with an insurance company or adjuster, because insurance representatives will not have your and your family’s best interests at heart. We will protect your interests and pursue your rights. Contact us by phone at (757) 552-6055 or by using our online contact form.

Jeff Brooke is a personal injury attorney devoted to helping individuals who have suffered serious and catastrophic injuries or lost a loved one as a result of someone else’s negligent and and careless actions. The Jeff Brooke Team serves all of southeastern Virginia. The firm helps clients in the Greater Tidewater and Greater Hampton Roads areas, including in Virginia Beach, Norfolk, Portsmouth, Chesapeake, and Chesterfield. The Jeff Brooke Team also handles cases in northeastern North Carolina, including the Outer Banks.

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