Wrongful Death Lawsuits in Virginia

Like other states, Virginia has wrongful death laws that permit a deceased person's survivors to sue if the death was the result of another party's accidental or intentional act. In this article, we'll provide an overview of these rules, including who can seek compensation, how damages are calculated and distributed, and the deadline for filing a wrongful death lawsuit. We'll also discuss other options for seeking compensation for the death of a loved one.

How Does Virginia Law Define "Wrongful Death"?

Virginia law defines a "wrongful death" as a death that is "caused by the wrongful act, neglect, or default" of another party. The circumstances of the death must be the kind that would have allowed the person to pursue a personal injury claim had they lived. Because the injured person is no longer able to file a claim on their own behalf, someone else must step in and file the claim. (Va. Code § 8.01-50 (2025).)

What Kinds of Incidents Can Lead to a Wrongful Death Claim?

As with personal injury cases in general, many types of events can be the basis of a wrongful death lawsuit, including:

• negligence-based incidents (such as car accidents)
• medical malpractice, and
• intentional acts (including crimes).

In fact, Virginia's wrongful death law specifies that a wrongful death claim can proceed even if the act that caused the death was a felony.

What's the Difference Between a Wrongful Death Claim and a Criminal Homicide Case?

As in other types of personal injury lawsuits, the defendant's liability in a successful wrongful death case is expressed solely in terms of money damages that the court orders the defendant to pay to the deceased person's survivors or estate. In a criminal homicide case, on the other hand, a conviction can result in jail or prison time, fines paid to the state, probation, and other penalties.

Another big difference between a criminal prosecution for homicide and a wrongful death civil lawsuit: In a criminal case, the accused's guilt must be established "beyond a reasonable doubt," which is a very high bar for the prosecution to clear. In a civil lawsuit, the defendant's liability must be shown only "by a preponderance of the evidence," meaning it's more likely than not that the defendant is responsible for the death. (Learn more about proving liability in a wrongful death case.)

Who Can File a Wrongful Death Claim in Virginia?

In some states, the deceased person's surviving family members can file a wrongful death lawsuit. In Virginia, though, a wrongful death claim must be filed by the personal representative (sometimes called the "executor") of the deceased person's estate. This person is usually named in the deceased person's will or other estate planning documents.

If a person dies without a will in Virginia, state law provides guidelines a court can use to choose a personal representative:

• If there is only one person entitled by law to inherit the deceased's estate, or if all of the deceased's survivors want to choose the same person, then that person will likely be the personal representative.
• If there is a dispute over who should have the position, the court can hear the competing claims and make a decision.
• If no one entitled to inherit the estate can be located, then the personal representative can be a charitable organization that acted as the deceased's conservator or guardian.
• In the absence of other options, courts can appoint creditors or other individuals to act as personal representatives.

If the deceased was a minor, and was in the custody of one parent, then that parent has the legal right to administer their child's estate and bring any wrongful death lawsuit. Or, that parent can waive that right and choose another person to fill the role.

(Va. Code §§ 8.01-50(C) and (D); Va. Code §64.2-502 (2025).)

Read more about who has the legal right to file a wrongful death lawsuit.

How Do Damages Work in a Virginia Wrongful Death Claim?

In a successful wrongful death lawsuit, the court orders the defendant to pay "damages"—or compensation for losses associated with the death—to the deceased person's survivors. Virginia law specifies the kinds of harm that can be compensated, defines who is entitled to compensation, and details how a wrongful death award must be distributed. It also places limits on certain kinds of damages.

What Damages Are Possible in a Virginia Wrongful Death Case?

Under Virginia law, damages in a wrongful death claim may include, but are not limited to, compensation for:

• sorrow and mental anguish
• loss of the deceased's comfort, guidance, companionship, society, and advice
• the value of lost income, including wages and benefits the deceased might reasonably have been expected to earn if he or she had lived
• loss of the deceased's services, protection, care and assistance
• medical expenses related to the deceased's final illness or injury, and
• reasonable funeral and burial expenses.

In cases where the conduct that caused the death is "willful or wanton," or reckless in a way that demonstrates "a conscious disregard for the safety of others," the court may award punitive damages. Unlike the types of damages described above, punitive damages are not intended to compensate for specific losses. Instead, punitive damages are awarded to punish especially bad behavior and deter others from engaging in similar behavior in the future.

Wrongful death lawsuits focus on how the death has affected survivors, not the deceased. Therefore, Virginia does not allow survivors to collect damages for the deceased's pain and suffering.

Read the full text of Virginia' wrongful death laws at Va. Code §§ 8.01-50 to 8.01-56, and learn more about damages that might be available in a successful wrongful death case.

Who Can Receive Compensation?

Although the personal representative must file a Virginia wrongful death claim, any damages awarded will go to the deceased person's "statutory beneficiaries."

State law prioritizes the deceased's surviving spouse and children. (If a decedent had a child who had already passed away, then any grandchildren take that child's place as beneficiaries.)

A parent of the deceased can be a beneficiary if the deceased child was regularly providing them with support--for example, assistance with living expenses, health care expenses, or home care.

If the deceased had no surviving spouse, child, or grandchild, then the deceased's parents and siblings can be beneficiaries (even if they weren't reliant on the deceased for financial support). In these cases, other relatives who were dependent on the deceased and lived in the same household can also be beneficiaries.

If none of the above persons survive, then damages could be recovered by any family member entitled to inherit the deceased's estate under Virginia's intestacy laws.

(Va. Code § 8.01-53 (2025).)

How are Damages Distributed?

If a judge awards compensation in a wrongful death case, they will specify how much money should be distributed to each potential beneficiary.

If a wrongful death case is being decided by a jury, then the parties to the case can ask the jury to decide how to apportion any award. If the jury can't or won't do this, then the court will step in and do it.

An award is paid to the personal representative, who must use it to pay any legal fees, medical expenses, or funeral expenses. The remaining money is then distributed to the beneficiaries.

Most personal injury lawsuits aren't decided by a judge or jury--instead, the parties reach a settlement through negotiations. In Virginia, negotiated settlements in wrongful death cases must be approved by the court hearing the case. If a settlement is reached before a lawsuit is filed, then approval must be obtained from one of Virginia's circuit courts.

(Va. Code § 8.01-54 (2025); Va. Code § 8.01-55 (2025).)

Damage Caps in Virginia Wrongful Death Cases

Like most states, Virginia places some limits on the amount of money a person or their survivors can be awarded in a personal injury lawsuit. In Virginia, these so-called "damage caps" apply in medical malpractice cases and to awards of punitive damages.

In medical malpractice cases, including cases where the malpractice resulted in death, the maximum amount of damages depends on when the malpractice occurred. Virginia law specifies a cap for each year--for example, for incidents that occurred between July 2020 and June 2021, the cap is $2.45 million. That amount rises year by year until 2031. Starting in July, 2031, the cap will stay at $3 million unless the state legislature updates the law. (Va. Code § 8.01-581.15 (2025).)

As we discussed above, in particularly serious cases a judge or jury can award punitive damages to beneficiaries. However, punitive damages are capped at $350,000. This cap covers all defendants in a lawsuit, so even if there are multiple defendants the total amount of punitive damages cannot exceed the $350,000 limit. (Va. Code § 8.01-38.1 (2025).)

How Long Do I Have to File a Virginia Wrongful Death Claim?

Like all states, Virginia has rules, called "statutes of limitations," that require lawsuits to be filed within certain time periods. The state's statute of limitations for wrongful death lawsuits gives the personal representative two years to sue, measured from the date of the deceased person's death.

In certain situations, the personal representative may be entitled to more time. For example, sometimes a wrongful death case is filed within the two year limit, but ends up being dismissed or halted before a final judgment is made. In these situations, the time spent on the first case does not count against the time limit for filing a second lawsuit.

In general, though, if a a wrongful death claim is not filed within two years, it will most likely be barred from court.

(Va. Code § 8.01-244 (2025).)

Wrongful Death Lawsuits Versus Survival Actions

In a wrongful death lawsuit, the deceased's beneficiaries seek compensation for the harm they've suffered as a result of the death. Virginia also allows so-called "survival actions," where the deceased's estate can recover damages for harm they suffered while they were still alive. Keep in mind that:

• The same wrongful act cannot be the basis for a survival action and a wrongful death lawsuit.
• Money received in a survival action goes to the deceased's estate, and is then distributed according to the terms of that person's will (or, if there is no will, Virginia's rules for intestate succession). This is different from the rules we discussed above for compensating beneficiaries in wrongful death cases.

When personal injury cases must be converted to wrongful death lawsuits. If someone is injured and later dies from those injuries, the personal representative and potential beneficiaries can only sue for wrongful death--they cannot pursue a personal injury lawsuit on behalf of the deceased. If a personal injury lawsuit was already underway when the person died, then that lawsuit must be converted into a wrongful death lawsuit.

Bringing a survival action and a wrongful death lawsuit for separate incidents. Any separate cause of action can continue after the deceased's death, even if a wrongful death lawsuit is also filed. This basically means that the defendant's legal rights survive their death, allowing their estate to pursue compensation for other harms they suffered while they were alive.

So, for example, imagine that someone lost money because of fraud, filed a lawsuit against the fraudster, and was later killed in a car accident. In that situation, the fraud lawsuit could continue as a survival action, and a wrongful death lawsuit could be filed against the negligent driver.

Can you ever bring a survival action and a wrongful death lawsuit for the same incident? Sometimes, but you'll eventually have to choose between the two. In one Virginia case, for example, a patient suffered an infection at the hospital, and later died. The deceased's representatives pursued a personal injury survival action for the infection, as well as a wrongful death claim that argued the infection led to the patient's death. However, they never intended to collect damages for both causes of action. Instead, they wanted to let a jury decide whether the death was caused by the same negligence that caused the infection.

The jury in that case was instructed that they had to choose between awarding wrongful death damages or survival damages. The jury found that the infection was caused by negligence, but did not conclude that the infection led to the patient's death. So, damages were awarded in the survival action, but not the wrongful death action.

(Va. Code § 8.01-25 (2025); Orne v. Kendrick, 6 Va. Cir. 136 (Cir. Ct. 1984); Central Health, Inc. v. Mullins, 277 Va. 59 (2009).)

Other Options for Seeking Compensation

In addition to wrongful death lawsuits and survival actions, there may be other options for seeking compensation after the death of a loved one. For example:

• Criminal restitution. People convicted of crimes in Virginia are required to pay at least partial restitution to their victims. If the victim dies as a result of the crime, this restitution can be applied to medical expenses and funeral expenses. (Va. Code § 19.2-305.1 (2025)
• Workers' compensation. Businesses and individuals who regularly employ at least two employees (whether part-time or full-time) must carry workers' compensation insurance. This insurance provides payments to people who are injured or sickened on the job. It also compensates the dependents of people killed in work-related accidents, or by work-related illnesses. Dependents can file a claim with the Virginia Workers' Compensation Commission; if the claim is successful then compensation is calculated using the deceased's average weekly wages as a baseline. (Va. Code § 65.2-512 (2025)

Virginia's Rules for Lawsuits Over Fetal Deaths

Virginia has special rules for cases involving the death of a fetus. Many of the laws we've already discussed apply in the same way to fetal wrongful death cases. However, it's important to understand a few key differences and additions.

Differences in who can sue. Instead of being brought by the personal representative of the deceased, a fetal wrongful death case is brought by the fetus' "natural mother" (that is, the woman who was carrying the child). If the natural mother is deceased or incapacitated, then the lawsuit can be brought by her guardian, her personal representative, or the administrator of her estate.

Additional rules for damages. The medical malpractice caps we discussed apply to wrongful fetal death claims. In addition, Virginia law specifies that the damage cap for an individual patient applies in all fetal death cases--even in cases where the same negligent act resulted in the deaths of multiple fetuses, or of a mother and a fetus.

The natural mother can't be sued. Virginia's fetal wrongful death rule specifies that it does not create a legal basis for suing the natural mother for the wrongful death of her fetus.

(Va. Code §§ 8.01-50(B), (C), (D), and (E) (2025).)

Get Legal Help

If you're thinking about filing a wrongful death lawsuit in Virginia, or you would like to learn more about your legal options, you might consider contacting an experienced personal injury attorney in your area. An attorney with experience handling these kinds of cases can answer specific questions about your situation and help you decide how to proceed.