Who Can File a Wrongful Death Claim in Virginia?

By Peter DePaolis

Wrongful death refers to the negligence-related death of one person by another. A wrongful death claim seeks to hold one or more parties civilly responsible for the negligent, wanton or default death of another person. A wrongful death case does not end in a criminal conviction against the defendant, but instead a settlement or judgment award for survivors. If you recently lost a loved one in an accident and suspect wrongful death, find out if you are one of the parties that may lawfully bring this type of claim in Virginia.

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Code of Virginia 8.01-50: Statutory Beneficiaries May File

The law regarding who may file a wrongful death claim in Virginia is Code 8.01-50. This law gives a very specific order in which surviving family members and dependents may bring a wrongful death claim. It gives this right to all statutory beneficiaries, but with a strict line of succession that starts with a surviving spouse and children. A spouse or child of a deceased person will have the initial right to file after someone’s death. From there, the opportunity passes to other beneficiaries.

  • Grandchildren, if both parents are deceased
  • Parents
  • Siblings
  • Other relatives in the household

Code of Virginia 8.01-53 explains that a compensatory award given in a wrongful death claim will be distributed in the same manner as the right to bring the claim. It will start with the surviving spouse and children of the deceased, as well as any grandchildren. Then, compensation distribution will expand to include parents of the decedent if they were dependent on the deceased person in the 12 months prior to death. If these parties do not exist, the damages will pass to brothers, sisters or other dependent relatives.

When Can Siblings or Parents File?

If you lost a brother or sister under suspicious circumstances, you will only have the right to bring a wrongful death claim if your deceased sibling does not have a surviving spouse, child or grandchild. Only then may the decedent’s siblings, parents or other relatives in the household who were dependent on the person file a wrongful death claim. A relative could be anyone related to the deceased person by blood, marriage or adoption. It can also include stepchildren.

Being dependent on the decedent means relying on him or her for necessities such as food, shelter, health care, living expenses or live-in care. If you were not dependent on your sibling for any of these things, you may not be able to file a wrongful death claim, even with no surviving spouse, child or grandchild. The courts will require proof that you were primarily dependent on the decedent for support or services and that you were a member of the same household at the time of death.

As a parent, you will have the right to file for wrongful death at the same time as siblings of the decedent, upon verifying that no surviving spouse, child or grandchild exists. The only time in which you may not have this ability is if the courts terminated your parental rights. If you are trying to file for the death of a child in foster care, for example, you may not have this option. Any beneficiary also has the right to renounce his or her interest in a wrongful death claim, in which case the damages will go to the next party in succession.

Find Out if You Have a Case

Virginia’s wrongful death statutes can be difficult to decipher, especially for families going through the grief and tragedy of losing a loved one. The easiest way to find out if you have the right to bring a claim is to discuss your case with an attorney. A Fairfax wrongful death lawyer can review your unique set of circumstances and verify whether you may bring a claim. If so, a lawyer can guide you through the legal process for the best possible outcome.

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.