My firm has handled many cases over the years involving wrongful death. From car crashes, to medical malpractice, to even outright murder, there often is a civil claim that follows. Shepherding clients through these cases requires the right approach, and the family dynamic can be tricky. Someone who otherwise had a very small estate has now died tragically, and the family members are expecting a potentially substantial inheritance. Tempers flare, misdeeds and misunderstandings are often rehashed. All of that lands in the lap of the lawyer who is brought on to handle a wrongful death case.
Who brings the lawsuit?
In Virginia, the properly named plaintiff in a death case is never the “estate.” This is because the estate is a legal entity and cannot be a plaintiff to a lawsuit. Instead, the lawsuit is brought and filed in the name of the personal representative of the estate, either an executor or an administrator. If the person who died (often called the “decedent”) had a will, and the will nominated an executor, then the executor is the plaintiff in the lawsuit. If the decedent died without a will (said to have died “intestate”), then someone can go to the courthouse and qualify in the clerk’s office as the administrator of the estate. In either case, that person is the named plaintiff in the lawsuit, e.g., James B. Smith, as administrator of the estate of Robert R. Smith vs. East Shore Hospital.
When should the lawsuit be filed?
As a general rule, a claim for wrongful death must be filed within two years from the date of death. Like most things in law, there are several exceptions. For example, if the cause of death is not readily apparent, the filing deadline may be extended in some instances to two years after the cause was discovered or reasonably should have been discovered. This is often called the “discovery rule” for purposes of tolling, or extending, the statute of limitations. This exception often comes into play when there is a latent injury resulting from a defective product, a toxic substance or some forms of medical malpractice. The safe play, however, is to follow the two-years-from-date-of-death rule.
Who receives the money?
On this question, Virginia has a statute that specifically lists the people who can receive the proceeds from the settlement or the verdict. This includes:
- A surviving spouse and children
- Grandchildren
- Parents of the decedent, provided the parents were financially dependent on the decedent in the 12 months immediately preceding the death
- Possibly siblings
Under the statute, a “relative” is any person related to the decedent by blood, marriage or adoption and also includes a stepchild. In most usual circumstances, a surviving spouse with minor children will be the beneficiary; however, if the decedent was older and unmarried, the proceeds are typically distributed to the children. The next question addresses when things get tense.
How is the money divided?
Imagine this: a man has worked at Newport News Shipbuilding and Dry Dock for 40 years and, nearing the age of 72, develops mesothelioma and dies from his exposure to asbestos from 40 years ago. He is comforted and consoled during his illness by his daughter, and she believes that she is an only child. However, upon dad’s death, the daughter learns of another son that the decedent had with another woman making the two suddenly half-siblings. Under Virginia’s wrongful death law, both are beneficiaries to the settlement money. Understandably, the daughter feels that her bond with her father was closer and more significant than Johnny-come-lately. In this instance, a judge will hear testimony and receive evidence on the issue and ultimately make an apportionment, e.g., 70 percent to daughter, 30 percent to newly discovered son.
As you can see, this can become contentious. If, however, all the beneficiaries are in agreement, the judge will typically sign and enter an order providing for a distribution that all parties agree on. And, here is another important wrinkle. It makes no difference if the decedent had a last will and testament. The statute will trump the will. If there is a contested hearing, the court can take the will into consideration as stating the decedent’s final wishes, but the distribution of money to the beneficiaries in a wrongful death statute is left within the judgment of the court and is spelled out by statute.
This legal minefield has to be tiptoed around while the family is often still grieving. Having an attorney with whom you feel comfortable and feel in good hands is important. No amount of money replaces the value of life, and having an attorney who knows and appreciates that truth while at the same time knowing the law can make a difference.
