We are very sorry for your loss. You do not have to read all of this today. Come back when you are ready.
Who files the claim?
Under § 8.01-50 (opens in a new tab), when a death results from another's wrongful act, neglect or default, the party who would have been liable had the person lived may be sued. The action must be brought by and in the name of the decedent's personal representative. (Decedent means the person who died.)
For a deceased infant in a custodial parent's care, administration is granted first to the parent having custody. If no parent or designee applies within 30 days from the infant's death, the usual rules apply (§ 8.01-50).
Who can receive damages?
Damages go to family members the law lists, in order, under § 8.01-53 (opens in a new tab). In short:
| Group |
Who is included |
| 1 |
Surviving spouse, children and grandchildren. Parents may share if they regularly received support or services in the 12 months before the death |
| 2 |
If there is no one in group 1: the person's parents, brothers and sisters, plus any other relative who depends mainly on the person for support or services and shares the household |
| 3 |
A spouse and parent or parents, if there is no child or grandchild |
| 4 |
Survivors under group 1 or 3, plus dependent household relatives |
| 5 |
If there are no survivors, distribution follows § 64.2-200 |
Children adopted after the death are included, unless the person's parental rights were terminated before death. That applies to adoptions finalized on or after July 1, 2024.
What can be claimed?
Section 8.01-52 (opens in a new tab) lists the kinds of damages a court or jury may award:
- sorrow, mental anguish and solace, including loss of companionship, comfort, guidance and advice
- reasonably expected lost income and the value of services, protection, care and assistance
- medical expenses from the injury
- reasonable funeral expenses
- punitive damages for willful or wanton conduct
Medical expenses, funeral expenses and punitive damages must be stated specifically. The section sets no dollar cap on the other items. Punitive damages are subject to a separate limit in § 8.01-38.1 (opens in a new tab): $350,000 in total against all defendants.
How long do you have?
The personal representative must bring the action within two years after the death, under § 8.01-244 (opens in a new tab). Claims involving a city, county or the state have shorter written notice windows. See the deadline checker for your dates, then confirm them with a lawyer.
Does a settlement need court approval?
There is a related rule for people who cannot manage their own affairs. Under § 8.01-424 (opens in a new tab), a court where a matter is pending may approve a compromise for a minor or a disabled person, using the standard of whether it is "to the interest of the party." An approval order binds that person and can be set aside only for fraud. Ask a lawyer whether this applies to your family.
What should the family do first?
- Take care of yourselves first. Eat, rest and lean on people you trust.
- Keep the crash report, death certificate and funeral bills in one folder.
- Do not sign anything from an insurer yet. See what to say to an adjuster.
- Write down the date of death and the date and place of the crash.
- Find out who is, or will be, the personal representative.
- Check your dates with the deadline checker.
- When you feel ready, talk to a lawyer. Read about how long a claim takes.
