When an individual dies as a result of the negligence of another—whether due to a defective product, an automobile collision, or medical error—the decedent’s beneficiaries may make a civil recovery for wrongful death. Many clients wonder, if a wrongful death claim results in a settlement or verdict, who actually receives the money damages which are awarded?
In Virginia, wrongful death claims are created and governed by statute, and the Virginia Code sets out an exact listing of the individuals entitled to recover in such a case.[i] These individuals, the “beneficiaries,” are grouped into five classes, creating a descending scale of priority:
- First, the wrongful death recovery is distributed to the decedent’s surviving spouse, children, and any children of a deceased child.
- Second, if there are no beneficiaries in the first class, the wrongful death recovery is distributed to the decedent’s parents and siblings.
- Third, if the decedent has left a surviving spouse and a parent or parents, but no children or grandchildren, the wrongful death award goes to the surviving spouse and parent(s).
- Fourth, if there are no survivors under (1) or (3), then the wrongful death award goes to resident relatives who were primarily dependent on the decedent for support and services.
- Fifth, if there are no beneficiaries in any other class, then the wrongful death award is distributed according to the rules of intestate succession.
Note that the statute does create some flexibility to provide for more distant relatives who are primarily dependent upon the decedent for support, but would not otherwise fit into a class with priority to recover.
Interestingly, this order of priority for wrongful death beneficiaries applies without regard to whether the decedent left a will, or to which individuals were set forth in the will to receive the decedent’s estate. A wrongful death award is paid directly to the statutory beneficiaries without passing through the decedent’s estate. Therefore, a situation certainly can arise in which a wrongful death award is paid to beneficiaries who take priority under the statute, but are completely different from the individual’s heirs as named in their will.
On the other hand, among multiple beneficiaries within the same class under the statute, one beneficiary may recover more than another based on factors such as the particular beneficiary’s grief and sorrow, or the amount of support the decedent provided that beneficiary. Often the beneficiaries within a class agree on the relative distribution, but other times evidence must be taken on the relevant issues and the distribution is fixed by either the judge or jury.[ii]
Furthermore, any beneficiary can choose to renounce her interest, with the balance of the recovery to be distributed to the remaining beneficiaries in the class.[iii]
Finally, when a wrongful death case is filed in court, it must be brought in the name of the administrator of the decedent’s estate. While it is common that the appointed administrator also is one of the statutory beneficiaries, that is not always the case. Therefore, the individual bringing the suit as administrator may or may not ultimately be entitled to some or all of the recovery.
Note that some portion of the settlement or verdict may not be intended to compensate for a beneficiary’s grief, sorrow and lost support, but instead designated to cover medical bills or funeral expenses incurred by the estate. These portions of the award must be itemized separately, and are paid to the administrator to reimburse the creditors who provided the services.[iv]
At Allen & Allen, we have extensive experience litigating wrongful death cases to pursue the best recovery possible for those who have lost a loved one due to the negligence of another. If a similar tragedy happened with a loved one, call us at 866-957-4230.
[i] Va. Code § 8.01-53 (A).
[ii] Va. Code § 8.01-53(B), 8.01-54.
[iii] Va. Code § 8.01-53(C).
[iv] Va. Code § 8.01-52.
