by P. Wilson ‘Wil’ Van Winkle and Ashley T. Davis
Who can file a case after the death of a loved one?
Often, the most difficult and heartbreaking cases we handle occur after the victim of an injury has passed away. Virginia law allows for two possible types of claims in this situation: wrongful death claims and survivor actions.
Which of these claims is the correct one to bring is dependent on the exact circumstances of the victim’s death.
Legal terminology glossary: what you need to know
Having a general understanding of legal terms is essential when dealing with wrongful death and survival claims. Below are some definitions of key terms to help you understand the process.
Personal representative
The individual appointed to manage the deceased person’s estate. They are responsible for filing wrongful death or survival claims and overseeing the distribution of proceeds. This person may be named in the deceased’s will, or the court may appoint one if no will exists.
Statutory beneficiaries
Individuals who are entitled to benefit from a wrongful death claim under Virginia law. This typically includes the deceased’s spouse, children, parents and sometimes other dependent family members. The court considers the closeness of the relationship when distributing proceeds.
Intestate succession
The legal process of distributing a deceased person’s assets when there is no will. Virginia law determines who inherits through a predetermined hierarchy, starting with immediate family members, such as the spouse and children. Unrelated individuals are generally excluded.
Negligence
The failure to act with reasonable care, resulting in harm to another person. For example, negligence in a car accident might involve a driver ignoring traffic signals and causing a collision. Proof of negligence is often a key factor in both wrongful death and survival claims.
Damages
The monetary compensation awarded to victims or their families in a legal case. Damages can include costs like medical bills, lost wages, and funeral expenses, as well as compensation for pain, suffering, or emotional anguish, depending on the type of claim filed.
This glossary provides a foundation for understanding the legal discussions surrounding wrongful death and survival actions. Clearer definitions can lead to better-informed decisions during a difficult time.
Wrongful death and survival action legal process overview
The legal requirements for wrongful death and survival claims are comprehensive. Below is a step-by-step guide to help you understand what is involved in filing each type of claim, the timelines to be aware of, the documentation you’ll need and the potential obstacles.
Steps for filing a wrongful death claim
- Appoint a personal representative: A wrongful death claim must be filed by the personal representative of the deceased’s estate, as specified by Virginia law. If no personal representative is named in the will, the court will appoint one.
- Determine eligibility of beneficiaries: Identify the statutory beneficiaries, such as the surviving spouse, children, or parents, who will ultimately receive any proceeds from the lawsuit.
- Gather necessary documentation: Key documents include the original death certificate, evidence of the relationship between the beneficiaries and the deceased, medical records, funeral expense receipts and proof of lost income from the deceased.
- File the wrongful death lawsuit within the statute of limitations: Virginia law requires wrongful death claims to be filed within two years of the date of death. Missing this deadline often means forfeiting the right to bring a claim.
- Establish liability: Your wrongful death lawyer will need to provide evidence that the negligent act directly caused the individual’s death.
- Pursue negotiations or go to trial: Many wrongful death cases are settled out of court. If a wrongful death action cannot be reached, the case will proceed to trial. Be prepared for this longer timeline, as trials can involve extensive hearings and evidence presentation.
Steps for filing a survival action
- Appoint a personal representative of the estate: Like wrongful death claims, survival actions also require a personal representative of the deceased’s estate to file the lawsuit.
- Collect evidence to support the claim: This includes detailed medical records showing the injury and treatment, documentation of lost wages, and evidence of pain and suffering endured by the deceased before their death. Receipts and time-sensitive records are especially important here.
- File within the statute of limitations: Survival actions must typically be filed within two years from the date of the negligent act, regardless of when the death occurred.
- Separate the cause of death from the negligent act: To recover compensation in a survival action, your lawyer will need to prove that the death was not caused by negligence. For example, if the decedent was injured in an accident but later died from an unrelated illness, a survival action may be appropriate.
- Resolve damages and distribution: Any award in a survival claim goes to the deceased’s estate, which means the funds will later be distributed according to the will or intestate succession laws.
Potential challenges in a wrongful death lawsuit and survival action
- Proving cause of death: Determining whether the negligent act caused death (wrongful death) or was unrelated (survival action) can be difficult and may require expert testimony, such as from physicians or accident reconstruction experts.
- High emotional costs: Dealing with the legal process during a time of grief is often overwhelming. Staying organized and relying on a qualified wrongful death attorney is essential.
- Disputes among beneficiaries: Conflicts may arise when distributing proceeds from wrongful death claims, especially if relationships with the deceased are strained.
- Meeting deadlines: The statute of limitations is strict. Missing it, even by a single day, can result in losing the right to pursue compensation.
By understanding these steps and potential challenges, family members and representatives can take legal action and file claims more confidently and clearly.
Wrongful death claim or survival action?
The key difference between a wrongful death claim and a survival action is whether the negligent act that gave rise to the claim actually caused the individual’s death.
When death is caused by a negligent act, you have a suit for wrongful death. When someone is injured by a negligent act and subsequently dies of unrelated causes, you have a survival action.
For example, if someone is killed in a car wreck, or passes away in the hospital from their injuries, that is a wrongful death claim. But if someone is injured in a car wreck and later dies due to an unrelated illness or event, that is a survival action.
These two types of cases have some things in common. Both must be brought by the decedent’s estate through its personal representative, and both seek to recover monetary damages arising from the injuries suffered by the deceased individual. However, there are also important differences.
Damages: what determines the value of the case?
The two types of claims allow for the recovery of different damages. A survival action is effectively the same case that the deceased person would have brought if they had lived, so damages are limited to what the deceased person suffered themselves, as in an ordinary suit for personal injury.[1]
The damages recoverable under a survival action may include:
- Medical expenses attributable to the accident
- Lost wages between the date of the accident and the date of death
- Pain and suffering between the date of the accident and the date of death
- Mental anguish between the date of the accident and the date of death
Regardless of what damages are applicable to any specific case, the focus will be on the damages of the deceased individual, and no consideration will be given to the suffering of others, such as family members.
On the other hand, a wrongful death claim focuses on the damages to family members and loved ones left behind. The family will be able to collect for medical bills caused by the accident and lost wages the decedent would have earned.
They will also be able to collect reasonable funeral expenses and compensation for the loss of care and services provided by the deceased. However, they will not be able to recover for the decedent’s pain and suffering or mental anguish, and will instead have a claim for their own suffering following their loved one’s passing.
Beneficiaries: who receives the proceeds of the case?
The two types of claims can also result in different dispersal of any funds recovered. Proceeds from a survival action go into the estate of the deceased, and are distributed along with the rest of their assets. The distribution would be governed by the deceased’s will, or if there was no will, by the principles of intestate succession.[2]
Proceeds of a wrongful death suit are not considered assets of the deceased, and their distribution is determined by statute, as follows:
- If the deceased had children, then the proceeds will be divided between their spouse and their children.
- If the deceased did not have children, the proceeds will be divided between their spouse and their parents.
- If the deceased had neither spouse nor children, the proceeds will be divided between their parents, their siblings, and any family members who depended on the deceased for financial support.
When distributing a wrongful death award, the court considers the strength and quality of the relationships between the statutory beneficiaries and the decedent.
Individuals who had a close relationship with the decedent will likely receive a greater portion of the wrongful death award, because they tend to be more acutely affected by their loved one’s death.
For example, a spouse or child who had a loving relationship with the decedent can expect to receive a more significant monetary award than an estranged spouse or child.
Choosing between a wrongful death and a survival action
In many cases, it is not clear whether the death was actually caused by the negligent act. In these situations, the Virginia Supreme Court has said that the family is not required to choose between the two types of case until the record has sufficiently established the cause of death. Sometimes, this can even result in both cases being submitted to a jury, which must then decide which of the claims to find damages under.
The interactions between a wrongful death suit and survival action can be complex, and taking on the legal process following the death of a family member is a lot to take in. The attorneys at Allen & Allen have decades of experience with these claims.
If you are mourning someone’s death following a tragic accident and are wondering what to do next, please call 866-388-1307 or fill out our online contact form to schedule a consultation today.
Additional resources
[1] Click here for more information on the damages available in a standard personal suit.
[2] Click here for more information on intestate succession in Virginia.
