What Is the Statute of Limitations on Wrongful Death in Virginia?

By Peter DePaolis

If you tragically lost a loved one in an accident in Virginia, the last thing on your mind might be initiating a legal claim. As you face expenses such as a funeral, burial and unpaid medical bills, however, you may recognize what a compensatory award could do for your family. On top of financial compensation, a successful wrongful death claim in Fairfax could provide justice and closure for you and your loved ones. If you miss your statute of limitations, however, you might give up the opportunity to file a wrongful death claim – even if you have strong proof of wrongdoing against the at-fault party.

Code of Virginia 8.01-244: Two Years From the Date of Death

A statute of limitations is a law placing a time limit on bringing a case. The purpose of a statute of limitations is to prevent plaintiffs from waiting excessively to file. Without a deadline, a claimant could wait until the loss of important evidence the defendant might have used as a defense to file a claim. Virginia has statutes of limitations on criminal and civil cases. A wrongful death claim is a civil case claiming the defendant caused the victim’s death and is therefore legally responsible for damages.

To bring a Fairfax wrongful death claim, one must do so by the deadline given in the Code of Virginia 8.01-244. This statute says that a personal representative of the deceased person’s estate has two years from the date of death to bring a claim. The law continues to state that if a plaintiff brings a wrongful death claim within the time limit, but the courts dismiss the case, the time while the case is pending will not count toward the two-year period. The plaintiff may then bring another action within the remaining limit on the original two years.

Are There Exceptions?

It is rare for the courts of Virginia to make exceptions to the wrongful death statute of limitations. However, certain circumstances could give a claimant more time to file than the typical two-year deadline. An important exception is the discovery rule. If a family member did not discover the death until days or weeks after the fact, the claimant will have two years from the date of discovery – not necessarily the date of death – to file a lawsuit.

Another exception is if a surviving child initiating the claim was a minor (under the age of 18) at the time of his or her parent’s death. A minor will have two years from the date of his or her 18th birthday to file a wrongful death claim, even if the original statute of limitations expired. In other unique cases, the courts may also grant exceptions; however, most courts take the statute of limitations very seriously.

What If You Miss the Statute of Limitations?

If the representative of the estate fails to file a wrongful death claim within Virginia’s two-year deadline, the family will most likely lose the right to obtain any compensation. A missed statute of limitations is typically grounds for the civil courts to refuse to hear the case before it begins. Even if the courts do accept the case, the defendant can use the missed deadline against the plaintiff to convince the courts to dismiss it. It is very important to speak to a lawyer right away about your deadline to understand exactly how long you have to file. Do not wait until the end of your window, as this could risk losing the right to recover compensation.

Get Help With a Wrongful Death Claim in Virginia

A wrongful death attorney can review your case, analyze the facts, assess an accurate deadline by which you must file and take care of all claims paperwork on your family’s behalf. Hiring a Fairfax personal injury attorney could help you avoid missing the statute of limitations through prompt and efficient claims filing. A lawyer will fill out the paperwork correctly the first time, saving you time and stress. Using a lawyer to bring your wrongful death claim could help you stay within all applicable Virginia laws, including the statute of limitations.

About the Author
Peter DePaolis joined the firm in 1980 and has since represented a large number of individuals involved in automobile collisions, truck accidents, bus crashes, defective products, and medical malpractice cases. A significant portion of Mr. DePaolis’ practice is devoted to working on behalf of people suffering from asbestosis, mesothelioma, and other asbestos-related cancers. He has led his firm’s fight against the asbestos industry and has recovered over $30 million in damages for asbestos victims and their families.