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Wrongful Death Claims Under West Virginia Law
General information about how wrongful death claims work in West Virginia, written for families trying to understand an unfamiliar legal process after a loss.
What a Wrongful Death Claim Is
A wrongful death claim is a civil legal action that may be brought when a person's death was caused by another party's wrongful act, neglect, or default. Under West Virginia Code §55-7-5, where the conduct that caused the death would have allowed the person to bring a claim had they survived, the law permits an action for damages after the death.
This is a separate process from any criminal case arising out of the same event. A criminal case, if there is one, is brought by the state and addresses criminal responsibility and punishment. A wrongful death claim is a civil matter, brought on behalf of surviving family members, and it proceeds on its own timeline with different questions and different outcomes.
Key Terms
- Wrongful Death
- A death caused by another party's wrongful act, neglect, or default, which may give rise to a civil claim under West Virginia law.
- Civil Action
- A lawsuit between private parties seeking damages or other relief, as distinct from a criminal prosecution brought by the state.
Who May Bring the Claim
West Virginia Code §55-7-6 directs that a wrongful death action be brought by the personal representative of the person who died. A personal representative is the individual appointed to act on behalf of the estate, a role usually established through the county probate process.
Although the personal representative files the action, the claim is generally brought for the benefit of surviving family members. West Virginia Code §55-7-6 describes those beneficiaries as including a surviving spouse and children, including adopted children and stepchildren, as well as parents, brothers and sisters, and any persons who were financially dependent on the person who died. Where there are no such survivors, the statute directs distribution according to the decedent's will or the laws governing inheritance.
Key Terms
- Personal Representative
- The person appointed, often through probate, who is legally authorized to act on behalf of a deceased person's estate.
- Beneficiary
- A family member or dependent for whose benefit a wrongful death claim is brought and among whom any recovery is distributed.
What the Claim Generally Addresses
West Virginia Code §55-7-6 identifies categories that a court or jury may consider in a wrongful death matter. These generally include the sorrow, mental anguish, and loss of the companionship, comfort, guidance, and society the person provided; the reasonably expected loss of income and of services the person would have provided; medical, hospital, and related care expenses connected to the fatal injury; and reasonable funeral expenses.
These categories exist because a death affects a family in more than one way, both personally and in practical, financial terms. West Virginia law does not set a formula in advance. What is fair and just in a particular case is left to the judgment of the court or jury considering the specific circumstances, and any recovery is then distributed among the beneficiaries.
How This Differs From a Survival Claim
West Virginia law also recognizes claims that belonged to the person who died and continue after death, sometimes called survival claims. Those generally concern harm the person themselves experienced before death, and they are pursued by the estate.
A wrongful death claim, by contrast, focuses on the losses experienced by surviving family members because of the death. Depending on the circumstances, both types of claims can arise from the same events, which is one reason these matters are sometimes more procedurally involved than they first appear.
General Time Limits
Under West Virginia Code §55-7-6, a wrongful death action generally must be commenced within two years after the person's death. This differs from many other injury claims, where the period generally runs from the date of the injury rather than from a death.
Because a personal representative usually must be appointed before an action can be filed, and because that appointment happens through a separate probate process, families often find it helpful to understand the general sequence early, even while other matters are still being sorted out.
What the Process Usually Involves
In broad terms, a wrongful death matter typically begins with the appointment of a personal representative and a review of how the death occurred, which may involve medical records, reports from investigating agencies, and information from witnesses. Insurance coverage may also be involved, depending on the circumstances of the death.
Many such matters are resolved without a trial. Others proceed through the court system. West Virginia courts also review and approve the distribution of any recovery among the beneficiaries, which is one way the statute seeks to account for the interests of everyone the claim was brought for.
Common Questions
Who is allowed to file a wrongful death claim in West Virginia?
West Virginia Code §55-7-6 requires that the claim be filed by the personal representative of the person who died. The claim is generally brought for the benefit of a surviving spouse and children, parents, siblings, and others who were financially dependent on the person.
Is a wrongful death claim the same as a criminal case?
No. A criminal case, if one is brought, is handled by the state and addresses criminal responsibility. A wrongful death claim is a civil matter brought separately on behalf of surviving family members, and the two can proceed independently of one another.
How long does a family have to bring a wrongful death claim?
West Virginia Code §55-7-6 generally provides that a wrongful death action must be commenced within two years after the date of death. Particular circumstances can affect how that general rule applies.
Does someone need to be appointed as personal representative first?
Generally, yes. West Virginia law directs that a wrongful death claim be brought by the personal representative of the estate, and that appointment is typically made through the county probate process.
What kinds of losses does West Virginia law take into account?
West Virginia Code §55-7-6 identifies categories including sorrow, mental anguish, and the loss of the person's companionship and guidance; lost income and services; medical and related expenses from the fatal injury; and reasonable funeral expenses.
This article is provided for general informational purposes and does not constitute legal advice. Laws change, and individual circumstances vary. If you have questions about how West Virginia law applies to your situation, consult a licensed attorney.