In previous blogs, we have discussed the concept of wrongful death and what it is. In this posting, we discuss who gets to make a claim and why.
A wrongful death claim is designed to compensate a decedent’s beneficiaries for the decedent’s medical bills, funeral expenses, loss of earnings, sorrow, grief and mental anguish. Note the precise language of the Virginia Wrongful Death Act: those that may claim are “beneficiaries.” They are not necessarily same as heirs who receive property under a will or even the estate itself.
Even local attorneys make this mistake and bring wrongful death suits on behalf of “The Estate of _______________.” This is not just bad lawyering but shows lack of understanding of how the Wrongful Death Act works.
A wrongful death claim is, in fact, something quite separate and apart from the estate. For example, a person has no chance during his life to “bequeath” any wrongful death claim to one of his or her heirs.
While there are interesting intersections between estate law and wrongful death law, it is important to recognize that they are two separate and distinct areas. Our office is fortunate in that it can rely on the firm’s trust and estate department to assist with issues like probate, qualifying as a wrongful death personal representative, and for estate taxation advice. In other matters, we have also set up special needs trusts to assist our wrongful death beneficiaries.
In actuality, the compensation scheme of the Wrongful Death Act is closest to what lawyers call the “intestate succession system.” This system determines who will receive a decedent’s property if he or she dies without a will. The Wrongful Death Act sets up a multilayered system. Generally, spouses and children are preferred beneficiaries. Later the law looks to brothers, sisters and parents. Even half siblings and adopted children have rights under the Wrongful Death Act. Any relative can be appointed a “personal representative” and lead the wrongful death case, although this will not necessarily increase that person’s share of any recovery.
In general, wrongful death claims can become quite complicated especially in the case of big or blended families. More importantly, a death claim can be one of the most significant and catastrophic type of legal cases which a family will ever have to contend. If you believe that you may be a beneficiary or have other rights arising out of a wrongful death, you should contact us for counsel immediately.