Fairfax Wrongful Death Lawyer

In many ways, a wrongful death action is similar to personal injury claim. In either case, you need to prove that the wrongful act that caused your loved one’s death was the result of negligence—in other words, the at-fault party failed to exercise reasonable care and your loved one died as a result. This could be the result of a car accident, medical malpractice, defective product, or any other preventable accident, injury, or exposure. 

One factor that makes this especially challenging in Virginia is contributory negligence. Just like personal injury cases, you can only recover compensation in a Virginia wrongful death claim if your loved one did not contribute in any way to the accident that caused their death. If they were even 1% at fault, you cannot recover financial compensation. 

You also need to demonstrate that their death caused damages for family members, such as sorrow and mental anguish, loss of financial support, etc. 

One more important factor to consider is the statute of limitations. In Virginia, you must file a wrongful death lawsuit within two years of the date of your loved one’s death. Note that this is not necessarily the same as the date of the original injury or exposure, if your loved one survived for days, weeks, or longer before succumbing to their injuries. 

Several documents can help us greatly and allow us to proceed with an investigation into your case. Here are a few things you might want to obtain beforehand if possible. 

• An original death certificate. (The funeral home will be able to provide this. Also, ask the funeral home for a bill marked “fully paid.” 
• Names and addresses of any doctor your loved one saw within the last two years. (A handwritten list is fine—it doesn’t need to be typed.) 
• A list of the immediate family members, together with their ages, dates of birth, and social security numbers. 
• Let us know whether an autopsy has been performed. If so, we can arrange to obtain a copy of it from the medical examiner’s office. 
• If your loved one had a will, please bring a copy with you. (We need this to know who the personal representative of the estate is.) 
• If your loved one did not have a will, one of their close family members will need to be named as the administrator of the estate. This simply means that that person will stand in place of the deceased loved one. He or she will have their name put on the litigation documents. However, that person does not receive any different or greater share of the recovery simply because they are the administrator. 
• If you have copies of any medical records, bring them. 
• Bring any medical insurance cards, bills, and receipts from any health insurance company about the treatment your loved one received recently. 
• If your loved one was employed, bring copies of their tax returns and W-2 forms for the last three years. 
• When you meet with us, try to bring any family members who have knowledge or information about the specific events that led to your loved one’s injuries and untimely death. 

All of this information assists in promptly evaluating your claim.  

In Virginia, wrongful death claims must be brought by the personal representative (sometimes called the executor) of the deceased person’s estate. This person is typically either named in your loved one’s will or appointed by the court. 

Note that, while the personal representative is usually also eligible for benefits from a wrongful death suit, this is not necessarily the case. The personal representative does not get any special treatment or compensation after the claim is settled. They are simply the individual who “stands in” for the deceased person and administers the estate, has their name on litigation documents, and disburses any settlement funds as directed by the court. 

Virginia law sets forth a specific procedure to determine who can recover compensation in a wrongful death case. 

In general, benefits will be distributed to a surviving spouse and any surviving children and descendants (grandchildren, great-grandchildren). These are the “statutory beneficiaries” who always have a right to seek compensation. Most of the time, they are the only qualifying beneficiaries. 

Things get a little bit trickier, however, under specific circumstances: 

• If the deceased person was providing support to their parents (for example, living expenses, housing, health care, etc.), the parents can also be beneficiaries in addition to a surviving spouse, children, and grandchildren. 
• If the deceased person had no surviving spouse or descendants, wrongful death benefits would go to their surviving parents. 
• If there are also no surviving parents, benefits would next be available to the deceased person’s siblings. 
• If none of the above family members are surviving, wrongful death benefits could be awarded to any relative who lived in the deceased person’s home and depended on them for support. 

The definition of “relative” includes anyone related to the deceased person by blood, adoption, or marriage, and also includes stepchildren. 

Further, any relative that wants to voluntarily give up their legal right to recover wrongful death benefits can do so by informing the court. Benefits that would have been awarded to them would instead be passed on to other beneficiaries within the same “tier,” or to a lower tier if there are none. 

When you file a wrongful death claim, it’s best to have a wrongful death attorney to help make sure you are fairly represented. 

In Virginia, these are the damages that can be recovered by the beneficiaries of the estate: 

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

Note that in a wrongful death case in Virginia, there is no recovery for the pain and suffering of the person who died (“the decedent”). Wrongful death cases are intended to acknowledge the losses suffered by surviving family members, rather than the deceased person. 

Ultimately, the exact distribution of benefits to eligible beneficiaries will be determined by the court. 

The family may request a specific distribution and submit it to the court. These requests are usually granted if they are reasonable. Otherwise, the court will distribute the compensation in whatever manner it considers fair. 

Once the case has reached a settlement or verdict, the money is paid to the personal representative of the estate. The representative then pays attorney’s fees (if applicable) and outstanding debts (medical costs, funeral costs, etc.), then distributes the rest to the surviving family members according to the direction of the court. 

Not necessarily. In fact, most wrongful death claims eventually result in an out-of-court settlement. 

However, due to the complexity of these cases, it may be necessary to file a wrongful death lawsuit (and possibly take the case all the way to trial) in order to get the best possible outcome for you and your family.  

Speak to your Virginia wrongful death lawyer about whether they think your case will require a lawsuit, and if the attorney has experience taking similar cases to trial (and winning). Not all wrongful death attorneys are trial attorneys.