§ 1 What is a wrongful death action?

Wrongful death claims did not exist at common law. They exist in Virginia only because the General Assembly created them by statute, so the statute controls who may sue, who recovers and what may be awarded. Va. Code § 8.01-50.

A wrongful death action lies when a death is caused by the wrongful act, neglect or default of another, and the conduct is such that the person who died could have sued for personal injuries had he or she survived. That second requirement matters: defenses that would have defeated the injured person’s own claim, including Virginia’s contributory negligence rule, generally apply to the wrongful death claim as well. Read more about contributory negligence.

Who files. The action is brought by and in the name of the personal representative of the person who died, typically an administrator appointed through the circuit court clerk. The personal representative sues on behalf of the family members the statute designates as beneficiaries (see § 3). Va. Code § 8.01-50(C).

Fetal death. Virginia also allows the natural mother to bring an action when a fetal death is caused by the wrongful act, neglect or default of another. Va. Code § 8.01-50(B).

§ 2 The two-year deadline

A wrongful death action must be brought by the personal representative within two years after the death. Va. Code § 8.01-244(B). Because a personal representative must first be appointed, families should not wait until the deadline approaches. Claims against the Commonwealth or a locality can require written notice much sooner.

§ 3 Who recovers: statutory beneficiaries

Any award goes to the family members the statute designates, in classes. It does not pass under the decedent’s will. In summary, Va. Code § 8.01-53(A) provides:

1. First class: the surviving spouse, the children of the decedent and the children of any deceased child. If there is a surviving spouse, child or grandchild, a parent also shares if, within the 12 months before the death, that parent regularly received support or services from the decedent for necessaries such as living expenses, food, shelter, health care or in-home care.
2. If there is no spouse, child or grandchild: the parents, brothers and sisters of the decedent, and any other relative who was primarily dependent on the decedent for support or services and lived in the same household.
3. Spouse and parents, but no child or grandchild: the surviving spouse and the parent or parents.
4. Dependent household relatives: where there are beneficiaries in the first or third class, any other relative who was primarily dependent on the decedent for support or services and lived in the same household also shares.
5. If none of the above survive: the award passes as provided by Virginia’s law of intestate descent, Va. Code § 64.2-200.

Parents whose rights were terminated. A parent whose parental rights were terminated by a court, or through a permanent entrustment agreement with a child welfare agency, is not eligible.

Who is a “relative.” Anyone related to the decedent by blood, marriage or adoption, including a stepchild.

When the class is fixed, and how the award is divided. The eligible beneficiaries are determined when the verdict is entered, if the jury specifies the distribution, or when judgment is rendered, if the court does. The jury or court decides how much each beneficiary receives.

Renunciation. A beneficiary may renounce his or her interest. The renounced share then goes to the others in the same class or, if there are none, to the next class in order of priority. Va. Code § 8.01-53.

§ 4 What damages are available

The jury, or the judge if there is no jury, may award “such damages as to it may seem fair and just.” The award “shall include, but may not be limited to,” five categories. Va. Code § 8.01-52:

1. “Sorrow, mental anguish, and solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent”;
2. “Compensation for reasonably expected loss of (i) income of the decedent and (ii) services, protection, care and assistance provided by the decedent”;
3. “Expenses for the care, treatment and hospitalization of the decedent incident to the injury resulting in death”;
4. “Reasonable funeral expenses”; and
5. “Punitive damages may be recovered for willful or wanton conduct, or such recklessness as evinces a conscious disregard for the safety of others.”

Evidence of sorrow, mental anguish and loss of solace can by itself support a substantial verdict, even without proof of lost income or expenses. Shepard v. Capitol Foundry of Va., Inc., 262 Va. 715, 554 S.E.2d 72 (2001) (citing Jan Paul Fruiterman, M.D. & Assocs. v. Waziri, 259 Va. 540, 545 (2000)).

Punitive damages are capped at $350,000 in total against all defendants. Va. Code § 8.01-38.1.

§ 5 How much can a jury award?

There is no formula. The amount is for the jury, and Virginia’s appellate courts give jury verdicts substantial protection.

In Shepard, a 67-year-old woman was killed when her truck was pushed into a tractor-trailer stopped in a travel lane. A Petersburg jury awarded $1,700,000: $1,100,000 to her husband of 44 years and $100,000 to each of their six adult children. The trial judge cut the husband’s award and one son’s award. The Supreme Court of Virginia reversed and reinstated the full verdict, holding that the trial court had viewed the evidence in the light least favorable to the family.

The evidence was about loss, not money. Mr. Shepard described cooking and eating alone, and explained that his wife had handled the family’s affairs throughout his 30-year military career, so that “when she passed, I was lost.” He described regular visits to her grave. Their children testified about the mother who held the family together while their father served overseas.

§ 6 Deaths caused by drunk drivers

Few deaths are more senseless than those caused by an impaired driver. In addition to compensatory damages, a driver’s decision to drive while intoxicated may support punitive damages as conduct showing a conscious disregard for the safety of others. Va. Code § 8.01-52(5). If a family member was killed by a drunk driver, call us at 804-783-2000.

§ 7 What families should do now

• Talk to a lawyer before talking to an insurer. Statements given to the other side’s insurance company can be used against the claim.
• Preserve evidence. Video, vehicle data and witness accounts disappear quickly. Keep photographs, medical and funeral bills, and any correspondence.
• Plan for a personal representative. Only a qualified personal representative can bring the action, so appointment should happen well within the two-year period.

We represent families in wrongful death cases where another party’s fault is clear. See the cases we take or call 804-783-2000.