Who Is Allowed to File a Wrongful Death Claim?

A grieving spouse or parent usually assumes they can file a wrongful death claim in their own name. In Virginia, Washington, DC, and New York, they cannot. The claim belongs to the deceased person’s estate and must be filed by the estate’s personal representative, who then pursues it for the benefit of the family members the statute names. The family members are the ones who receive the money, but the representative is the one who signs the complaint. Understanding that split answers most of the questions families ask in the first weeks: who has to be appointed, who will be paid, and what happens when relatives disagree.

The personal representative files, not the family

Wrongful death is a statutory claim, and each statute names the person who may bring it. In Virginia, the action is brought by and in the name of the personal representative of the deceased. In the District of Columbia, the personal representative brings the action for the benefit of the spouse or domestic partner and next of kin. In New York, the personal representative, meaning the executor named in a will or the administrator appointed by the Surrogate’s Court, brings the claim on behalf of the distributees. In all three, a family member who files in their own name without being appointed has filed a claim the court will dismiss.

The representative acts as a fiduciary. They hire counsel, make litigation decisions, approve or reject settlements, and account for the proceeds. Our wrongful death practice typically begins by confirming who will serve in that role, because nothing else can move until someone has the authority to sign.

Who the beneficiaries are

The beneficiaries are the people the statute designates to receive wrongful death damages. They are not necessarily the people named in the will, and they are not necessarily everyone who was close to the deceased.

• Virginia groups beneficiaries into classes. The surviving spouse, children, and children of any deceased child come first. If there are none, the deceased’s parents, siblings, and any relative who was primarily dependent on the deceased and lived in the household take next. The statute has a special rule when the deceased left a spouse and a parent but no children, and a final catch-all for other dependent relatives.
• The District of Columbia directs damages to the surviving spouse or domestic partner and the next of kin, apportioned according to each person’s financial loss.
• New York distributes damages to the distributees, the people who would inherit under intestacy rules, in proportion to the pecuniary injury each suffered. A surviving spouse and children are the usual distributees; parents inherit when an unmarried child without children dies.

Unmarried partners, stepchildren who were never adopted, and close friends generally fall outside these categories regardless of the relationship, which is one of the harder conversations in these cases.

How someone becomes the personal representative

If the deceased left a will naming an executor, that person usually qualifies by presenting the will to the probate court: the circuit court clerk in Virginia, the Probate Division of the Superior Court in DC, or the Surrogate’s Court in New York. If there was no will, a family member petitions to be appointed administrator, and the statutes set a priority order that generally favors the spouse, then adult children, then parents.

New York allows the Surrogate’s Court to issue limited letters of administration that authorize the representative to pursue the wrongful death claim without administering the rest of the estate, which is useful when the deceased had few assets. Our post on how probate and a wrongful death claim fit together explains the appointment process and what the court requires of the representative. The wills, trusts, and probate administration page covers estate administration more broadly.

When family members disagree

Disputes arise over who should serve as representative, whether to settle, and how proceeds should be divided. Two adult children from different marriages may each want to control the case. A surviving spouse and the deceased’s parents may disagree about whether a settlement offer is adequate. The representative has a duty to act for all beneficiaries, not just themselves, and courts in all three jurisdictions supervise the distribution. Virginia and New York both require court approval of wrongful death settlements and of the allocation among beneficiaries, which gives a dissenting family member a forum to be heard. Appointing a neutral representative, or agreeing on the division in advance, often prevents the litigation within the litigation.

The deadline runs while the estate is being opened

The wrongful death limitations period is two years from the date of death in Virginia, DC, and New York, and the clock does not pause while the family decides who will serve. Opening the estate, obtaining letters, and filing the complaint all have to fit inside that window, so the appointment should not wait. Our post on how long you have to file a wrongful death lawsuit addresses the shorter deadlines that can apply when a government or a hospital is the defendant.

If you have lost a family member and are not sure who should bring the claim, a consultation with Capitol Law Partners can sort out the appointment and the beneficiaries before the deadline becomes a problem. Schedule a consultation.

This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by this communication.

Attorney Sena Sahin. Clear advice for individuals, families, and business owners.

Need help with this topic? See our wrongful death claims page or schedule a consultation.