Losing a family member to someone else’s carelessness raises hard questions, and one of the first is who has the right to take legal action. The short answer in Virginia: the estate’s personal representative usually brings the case, and any money recovered goes to the close relatives who qualify. A personal injury lawyer in McLean can help your family work out who should step into that role.
If the deceased person had a will, they likely have named someone to serve as a personal representative. That person will deal with all the matters of the estate, including filing the wrongful death lawsuit. If there is no personal representative, the court will appoint someone to serve in that capacity, and they will file the claim. The family will be entitled to one solitary wrongful death claim that all affected parties will join.
Eligible Family Members and Who Files for Them
Not everyone connected to the deceased is legally allowed to file a wrongful death lawsuit. Under Virginia Code § 8.01-53, the right to bring a claim belongs to certain statutory beneficiaries, typically in the following order:
- Spouse, children, and grandchildren
- The parents, when no spouse or child survives
- Siblings or other dependent relatives, under specific conditions
Virginia law places the claim in the hands of a personal representative of the estate, who files on behalf of the eligible beneficiaries. This distinction matters because it affects who may receive portions of a settlement or judgment.
What Counts as a Wrongful Death
A death may support a claim when it was caused by another person’s or company’s negligence, recklessness, or intentional wrongdoing. The key question is usually whether the person who died could have brought an injury claim of their own had they survived. If so, the family’s claim can take the place of the one their loved one can no longer bring.
This kind of claim is a civil matter about money for what the family has lost. It is separate from any criminal case against the person responsible, and a family may be able to pursue it even when no criminal charges are filed. Our guide to the meaning of wrongful death explains the idea in more detail.
Losses the Family Can Recover
A personal representative or executor of a decedent’s estate can ask for damages for wrongful death for the immediate family members. Damages may cover the following:
- The loss of the deceased’s guidance, comfort, companionship, and advice
- Sorrow and mental anguish
- Lost income, including benefits and earnings the deceased may have earned if they had survived
- The loss of the deceased’s protection, assistance, and care
- Bills for medical care during the last injury or illness
- The funeral and burial costs
What these losses are worth depends on the facts, such as the person’s age, earnings, and relationship with each family member. Our post on the average wrongful death settlement in Virginia looks at what can raise or lower the amount.
The Deadline to File a Wrongful Death Claim
Wrongful death claims have a strict filing deadline, and it can arrive sooner than a grieving family expects. The clock usually starts running on the date of death, though some situations can change the timing. Because the personal representative is the one who files, the family may also need time to have someone formally appointed before the case can begin.
If the deadline passes, the court will likely refuse to hear the case, no matter how clear the other side’s fault may be, and the family can lose the chance to recover anything. For the full time limit, read about the Virginia wrongful death statute of limitations.
Situations That Often Lead to Wrongful Death Claims
Wrongful death claims grow out of many kinds of preventable incidents. Typical examples include:
- Car, truck, and motorcycle crashes caused by distracted, impaired, or speeding drivers
- Pedestrian and bicycle accidents
- Medical mistakes, such as a missed diagnosis or a surgical error
- Dangerous conditions on someone else’s property
- Defective products, such as faulty vehicle parts
Each type of case raises its own questions about who was at fault and which insurance applies. When a crash is involved, our guide to filing a wrongful death claim after a car accident walks through what families can expect.
Deaths tied to medical care often raise added questions about what a careful doctor or hospital would have done. Its page on McLean medical malpractice cases covers what those claims involve.
How a Family Proves a Wrongful Death Claim
To succeed, the family generally has to show that someone else’s wrongful conduct caused the death. In most cases, that means showing four things:
- The other party owed the person a duty of care, such as a driver’s duty to drive safely
- The other party breached that duty through a careless, reckless, or intentional act
- That failure caused the death
- The family suffered harm as a result, such as missing financial support or companionship
Useful evidence often includes police and accident reports, medical records, the death certificate and autopsy findings, photos and video, and statements from people who saw what happened. Experts, such as doctors or accident reconstruction professionals, may explain how the death occurred. For a closer look, see our post on proving wrongful death in Virginia.
Getting Answers About Your Family’s Claim
Your family should carefully review your state’s laws with the help of a wrongful death attorney. They will explain who can file the lawsuit and what you need to do to seek justice and accountability for the loss of a loved one.
A first meeting is a chance to ask questions before anyone signs anything. It helps to bring the death certificate, any will or estate papers, police or medical records, and letters from insurance companies. For grieving families in Fairfax, Arlington, Prince William, and Loudoun Counties, Tysons Trial Law can explain who should act as personal representative and which relatives may share in any recovery. You can also read about the firm’s Northern Virginia wrongful death practice.
Talk With Tysons Trial Law
If you or a family member was harmed by someone else’s carelessness, Tysons Trial Law, PLLC can review what happened in a free consultation.
