Who Can File a Wrongful Death Lawsuit in Virginia? Understanding Your Family’s Legal Rights.
Losing a loved one due to someone else’s negligence is devastating. As you navigate grief, legal questions may feel overwhelming: Can you sue for your father’s death? Your spouse’s? Your child’s? Who has the legal right to seek justice and compensation?
Decker Law is here to help. Virginia law establishes a specific hierarchy determining who can be compensated in a wrongful death lawsuit. Understanding these rules, while emotionally difficult, is crucial for protecting your family’s rights and holding responsible parties accountable.
Let’s walk through an overview of Virginia’s wrongful death laws for additional clarity on what you and your family may be experiencing.
The Direct Answer: Virginia’s Wrongful Death Hierarchy
Virginia Code § 8.01-53 establishes a strict order of priority for who can be compensated in a wrongful death lawsuit:
First Priority: Surviving spouse, children, grandchildren, and parents. The surviving spouse, children, in some circumstances grandchildren, and in some circumstances the parents of the deceased can be compensated.
Second Priority: Parents and Siblings. If there is no surviving spouse, children, or children of any deceased child of the deceased, then the following can be compensated: the parents, brothers and sisters of the deceased, and to any other relative who is primarily dependent on the decedent for support or services and is also a member of the same household as the decedent.
Third Priority: Spouse and Parent(s). If the decedent has left both surviving spouse and parent or parents, but no child or grandchild, the award shall be distributed to the surviving spouse and such parent or parents.
Fourth Priority: Dependent Relatives. If there are survivors under the First or Third Priority, the award shall be distributed to those beneficiaries and to any other relative who is primarily dependent on the decedent for support or services and is also a member of the same household as the decedent.
Fifth Priority: No Survivors. If no survivors exist under the above priorities, the award shall be distributed in the course of descents as provided for in § 64.2-200.
This hierarchy isn’t arbitrary, it reflects Virginia’s assessment of who suffers the greatest loss from a loved one’s death. But the real-world application often involves nuance, family dynamics, and practical considerations during an impossibly difficult time.
If you’ve experienced a wrongful death, contact the experienced attorneys at Decker Law to schedule your free consultation.
Understanding Each Category of Beneficiary
Surviving Spouse: First in Line
If your spouse died due to medical malpractice, a car accident, workplace negligence, or any other wrongful act, you have the legal right to seek compensation in a wrongful death lawsuit in Virginia.
What this means practically: You can control the decision to pursue legal action. You can choose the attorney, make settlement decisions, and receive the compensation awarded for your spouse’s death.
Important considerations:
- You must be legally married at the time of death (common-law marriage isn’t recognized in Virginia)
- Separated spouses still have this right if not legally divorced
- You have two years from the date of death to file a lawsuit (with limited exceptions)
Your recoverable damages include:
- Sorrow, mental anguish, and loss of solace suffered by the beneficiaries. Solace may include society, companionship, comfort, guidance, kindly offices, and advice of the decedent.
- Loss of your spouse’s income and services
- Medical and funeral expenses
- Loss of guidance, care, and protection
Children: When There’s No Spouse or Spouse Doesn’t Act
If your parent died and there’s no surviving spouse—or the surviving spouse doesn’t file a wrongful death lawsuit within the legal timeframe—you as a child have the right to pursue the claim. You can also pursue the claim if the surviving spouse does not.
This includes:
- Adult children (age doesn’t matter)
- Minor children (represented by a guardian)
- Biological children
- Legally adopted children
- Children born after death (if conceived before death)
Multiple children scenario: Each child has their own claim for damages. See the “What children can recover” section, below. When several children exist, the children will sometimes agree to split the compensation from a settlement or judgement. Other times the children will go to court to litigate how the settlement or judgement proceeds will be distributed.
Practical family dynamics: Siblings don’t always agree on whether to pursue legal action, which attorney to hire, and whether to accept settlement offers. When families disagree, this can complicate the legal process—we’ll address this below.
What children can recover:
- Sorrow, mental anguish, and loss of companionship with the deceased parent
- Loss of financial support (especially important if the deceased parent provided income)
- Loss of guidance, nurturing, and care
- Medical and funeral expenses
Parents: When Adult Children Die Without Spouses or Children
If your adult son or daughter died without a spouse or children of their own, you as parents have the legal right to seek compensation from a wrongful death lawsuit in Virginia.
This applies when:
- Your adult child was unmarried
- Your adult child had no children
- Your child died due to someone else’s negligence
- Your child was responsible for supporting you financially, or otherwise
Both parents or one? If both parents are living, Virginia law generally allows both to be part of the proceeds from a lawsuit. If only one parent is living, that parent may file alone.
What parents can recover:
- Sorrow, mental anguish, and loss of solace suffered by the beneficiaries. Solace may include society, companionship, comfort, guidance, kindly offices, and advice of the decedent
- Loss of income, medical and funeral expenses they paid
- Loss of the services and support the deceased child might have provided
A painful reality: Virginia law presumes parents of adult children without spouses/children have suffered loss, but the compensation often doesn’t reflect the true magnitude of losing your child. No amount of money replaces them, but it can hold wrongdoers accountable and provide some financial security.
What Happens When Multiple Family Members Have Rights?
Family dynamics during grief are complicated. Legal rights add another layer of complexity.
Scenario 1: Surviving Spouse and Adult Children from Prior Marriage
Your father remarries. His new spouse has the right to file a wrongful death lawsuit if he dies. His children from his first marriage cannot file their own separate lawsuit.
However, the children are beneficiaries. They’re entitled to share in any wrongful death recovery based on their relationship and loss. If the surviving spouse files the lawsuit, both spouse and children receive portions of any settlement or verdict.
This creates tension: In this example, the spouse controls the litigation decisions, but children have a stake in the outcome. If disagreements arise about settlement offers or legal strategy, Virginia courts may need to appoint a guardian ad litem or take other steps to protect all beneficiaries’ interests.
Scenario 2: Multiple Adult Children, No Spouse
Your mother dies leaving three adult children. All three have the right to file a wrongful death lawsuit. Practically, one child typically takes the lead and files on behalf of all the estate.
Agreement is crucial: In a perfect world, the children should agree on:
- Whether to pursue legal action
- Which attorney to hire
- How to split any recovery
- Whether to accept settlement offers
When siblings disagree: If one sibling wants to settle for $100,000 but another insists on going to trial, this creates problems. An experienced wrongful death attorney can facilitate family discussions and help reach consensus. In extreme cases, courts and additional legal representation may need to intervene.
Scenario 3: Estranged Family Members
You haven’t spoken to your father in 20 years due to abuse or abandonment. He dies in a car accident caused by a drunk driver. As his child (if no spouse exists), you still have the legal right to seek compensation and file a wrongful death lawsuit.
Virginia law doesn’t require a close relationship, only the legal relationship of spouse, child, or parent. However, the quality of your relationship may affect damages, particularly for “sorrow and mental anguish.”
The Personal Representative’s Role
When no spouse, children, or parents exist—or when none of them file —the personal representative (sometimes executor) of the deceased person’s estate can file a wrongful death lawsuit.
Who is the personal representative?
- Named in the will as executor, or
- Appointed by the court if no will exists
Who benefits? Any wrongful death recovery goes to the statutory beneficiaries under Virginia law, which may include:
- Siblings
- More distant relatives
- Heirs under intestacy laws
The personal representative files the lawsuit but doesn’t personally benefit unless they’re also a family member entitled to recovery under Virginia’s distribution scheme.
The Two-Year Deadline: Why Acting Promptly Matters
Virginia’s statute of limitations for wrongful death is two years from the date of death. Miss this deadline, and your family loses the right to sue forever, regardless of how clear the negligence or how catastrophic the loss.
Exceptions are rare:
- Cases involving minors have different deadlines
- Discovery rule may apply in limited circumstances (fraudulent concealment)
- Tolling for medical malpractice claims involving foreign objects
Don’t wait: While you need time to grieve, starting the legal process doesn’t mean you’re not mourning, it means you’re protecting your family’s future. Initial consultations and investigations can begin while you process your loss.
To speak with an experienced wrongful death attorney at Decker Law, call 757-622-3317 to schedule your free consultation.
Practical Steps: What to Do After a Wrongful Death
- Focus on your family first. Legal claims matter, but your immediate wellbeing and that of your family is paramount. Seek support from loved ones, counselors, or grief support groups.
- Preserve evidence. Even amid grief:
- Keep all medical records, bills, and correspondence
- Don’t sign releases from insurance companies without legal advice
- Gather photos, documents, and any accident reports
- Write down what you remember while memory is fresh
- Consult an experienced wrongful death attorney. Initial consultations with Decker Law are free and confidential. Our attorneys can:
- Determine who in your family has the legal right to file
- Evaluate the strength of your case
- Handle family disagreements about litigation
- Work on contingency (no fees unless you recover)
- Understand you’re not alone. Thousands of Hampton Roads families face wrongful death situations annually. Decker Law has experienced attorneys who handle these cases with both legal skill and human compassion.
- Don’t communicate with insurance companies alone. They may pressure you to settle quickly for far less than your claim’s worth. They may ask you to give recorded statements that can hurt your case. Let our attorneys handle these communications. Anything you say to the insurance company is likely being recorded and can be used against you.
When Family Disagreements Arise: Navigating Complex Dynamics
Grief affects people differently. One sibling may want to “let it go and move on.” Another may feel strongly about holding the responsible party accountable. A surviving spouse may prioritize quick settlement, while adult children want to fight for maximum recovery.
These disagreements are normal. Our experienced wrongful death attorneys serve as both legal advocate and potentially as neutral facilitators, helping families:
- Understand what’s legally possible
- Discuss options without heated emotion
- Reach consensus on litigation strategy
- Protect everyone’s interests
Courts prefer families to work together, but when that’s impossible, legal mechanisms exist to protect all beneficiaries’ rights.
Why Legal Action Isn’t Just About Money
Many families hesitate to file wrongful death lawsuits because it “feels wrong” to pursue money after losing someone irreplaceable. We understand that sentiment completely.
But consider this: Wrongful death lawsuits serve purposes beyond compensation:
- Accountability: Holding negligent parties responsible may prevent future deaths
- Answers: The discovery process often reveals what happened and why
- Security: Compensation can’t replace your loved one, but it can secure your family’s financial future, fund children’s education, or cover mounting expenses
- Justice: Sometimes pursuing legal action is the only way to acknowledge the magnitude of your loss
You’re not dishonoring your loved one’s memory by seeking justice—you’re honoring it.
We’re Here to Help Your Family Through This
At The Decker Law Firm, we’ve guided dozens of Hampton Roads families through wrongful death claims. We understand that behind every case is profound loss, complex family dynamics, and difficult decisions made during the worst time of your life.
We offer:
- Free, confidential consultations with no obligation
- Compassionate guidance through Virginia’s wrongful death laws
- Contingency fee representation (no costs unless we recover for you)
- Experience with hospitals, insurance companies, and Hampton Roads courts
- Honest assessment of your case and your family’s rights
Call Decker Law at 757-622-3317. We’ll explain who in your family has the legal right to file, what recovery might look like, and how we can help you seek justice for your loved one.
Helping people is what we do. You shouldn’t have to navigate Virginia’s legal system alone while grieving. Let us handle the legal complexities so you can focus on your family. Schedule your free consultation.
The Decker Law Firm • Norfolk, Virginia • 757-622-3317
Experienced wrongful death representation throughout Hampton Roads, including Norfolk, Virginia Beach, Chesapeake, Portsmouth, Hampton, and Newport News.
