Losing a loved one in an accident is devastating to the victim’s family. Beyond the immeasurable mental anguish and emotional toll, the family often faces financial burdens as well. If someone else caused the accident, family members may be able to recover financial compensation under Virginia’s wrongful death statute. These cases present many questions, but one question frequently asked by our clients at The Jeff Brooke Team is how wrongful death settlements are paid out in Virginia.
Virginia Wrongful Death Statute
Everything about a wrongful death action is determined by Virginia’s state law, including who can file the lawsuit. The authority to bring an action or negotiate a settlement belongs to the personal representative of the victim’s estate. That person is either the executor named in a will or the administrator appointed by the court if there is no will. The personal representative files on behalf of the victim’s family members, as well as on behalf of the estate.
The statute also provides which family members can benefit from a wrongful death settlement or verdict, as well as what damages can be recovered. The statute sets a priority order for recovery of damages by family members:
- 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.
Each group of family members is entitled to benefit from the settlement only if there are no members of the preceding group.
How Is Wrongful Death Compensation Determined?
Under the statute, the personal representative has the authority to negotiate a settlement on behalf of the estate and family members. It is always in the best interest of the estate and the family for the personal representative to retain an experienced Virginia wrongful death attorney to handle the negotiations with the at-fault party’s insurance company.
Your lawyer will know exactly what damages can be claimed and recovered, as well as who is entitled to the proceeds of any settlement. Whether the compensation is determined through settlement negotiations or by a court verdict, the terms of the settlement or verdict likely will specify exactly which family members receive the distribution, as well as which items of damages the compensation covers.
Court Approval of Wrongful Death Settlements
Before a wrongful death settlement is finalized, the statute requires the settlement to be approved by a Virginia court. If a lawsuit has been filed, the approval occurs within the action itself. If an action has not been filed, a separate petition must be filed with the court. Generally, the petition is filed by the personal representative or the insurance company for the at-fault party.
Court review of the settlement includes consideration of the allocation of benefits to family members entitled to receive benefits under the statute. If family members entitled to benefit do not agree with the distribution, they may object to the settlement allocation. If any objections are made, the court has the authority to determine the allocation in accordance with the statutory provisions relating to damages, which include:
- Funeral and burial costs and expenses;
- Hospital and medical expenses incurred prior to death;
- The deceased person’s lost wages and pain and suffering;
- Family members’ sorrow and mental anguish, including loss of comfort, guidance, and companionship;
- Family members’ expected loss of income and services, including as protection and care, of the deceased person;
- In limited circumstances, punitive damages.
After court approval of a wrongful death settlement, the personal representative is responsible for distributing the proceeds. The amounts due the estate and creditors of the estate are paid first. Then the family members’ allocations are distributed to the beneficiaries as provided by the settlement.
Is It Necessary to File a Lawsuit?
The personal representative is not legally required to file a wrongful death lawsuit to recover damages and negotiate a settlement. However, it often is necessary to file an action to preserve the right to recover damages from the at-fault party.
There is a two-year statute of limitations on filing a wrongful death action, which means that if an action is not filed within two years of the date of death, the right to recover will be lost. Settlement negotiations often can extend beyond two years.
Accident cases are often factually complicated and require extensive investigation to ascertain the cause and who is at fault. In those cases, filing a lawsuit preserves the rights of the estate and family members to recover under the wrongful death statute. If settlement negotiations fail to yield a satisfactory result, the case can proceed to trial for a jury to determine the amount of damages.
Preparing a lawsuit for filing requires considerable investigation and time. In any case, contacting a wrongful death attorney at the earliest possible time is the best way to ensure that the family’s rights under the statute are fully protected and pursued. As time passes, gathering evidence and investigating the case can become more difficult.
In any wrongful death case, it is not a good idea for a personal representative to attempt to negotiate a settlement with the insurance company. Getting a fair and full settlement requires understanding the wrongful death statute and knowing what damages the estate and family members can recover.
If the personal representative or a family member decides to negotiate directly with the insurance company, it can jeopardize the case and affect the amount of recovery. Having experienced legal counsel on your side is the only way to ensure that your family gets the full compensation they deserve if your loved one’s death was caused by another person’s negligence.
Talk With an Experienced Virginia Beach Wrongful Death Lawyer
The Jeff Brooke Team is a trusted personal injury law firm in Virginia Beach with substantial experience in wrongful death cases. When you talk with Attorney Jeff Brooke, he will explain everything you need to know about your family’s right to recover for your loved one’s wrongful death, including how wrongful death settlements are paid out in Virginia. The Jeff Brooke Team will always 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 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.