Detailed Answer — How West Virginia law treats wrongful death and related proceeds

Short answer: generally no — proceeds recovered in a wrongful death action are for the benefit of the decedent’s surviving relatives and are distributed under West Virginia’s wrongful death statute, not simply passed under the decedent’s will. However, closely related claims called “survival” actions (damages for the decedent’s own pre-death losses) are estate assets and may pass according to the will.

Two separate legal claims: wrongful death vs. survival actions

West Virginia law treats two types of post-death claims differently:

• Wrongful death action: This is a statutory cause of action brought because a person’s death was caused by another’s wrongful act, neglect, or default. The purpose is to compensate the decedent’s survivors (spouse, children, or other dependents) for their losses resulting from the death. The recovery from a wrongful death claim is for the benefit of the survivors and is distributed according to the wrongful death statute, not necessarily under the decedent’s testamentary plan. See West Virginia Code, Title 55, Chapter 7 (wrongful death statutes): https://code.wvlegislature.gov/55/7/.
• Survival action: Some claims the decedent had at the time of death (for example, pain and suffering before death, medical expenses incurred prior to death, or other personal causes of action) survive the decedent and belong to the decedent’s estate. Proceeds recovered on surviving claims are estate assets. Because they are assets of the estate, they generally pass according to the decedent’s will (if there is one) or by intestate succession if there is not. See West Virginia Code, Title 55, Chapter 7 (survival statutes): https://code.wvlegislature.gov/55/7/ and consult the probate/intestate rules at Title 42: https://code.wvlegislature.gov/42/1/.

Who controls the lawsuit and how proceeds are distributed

In practice, a personal representative or other authorized party typically brings the wrongful death and/or survival claims on behalf of the estate and/or the survivors. The wrongful death recovery is intended for specific beneficiaries (surviving spouse, children, or other heirs) and distribution follows the statutory scheme for wrongful death recoveries rather than the decedent’s testamentary directions. Survival action recoveries, as estate property, are administered through probate and will be distributed under the will or intestacy law.

Practical example (hypothetical)

Hypothetical facts: Alice is killed in a car crash caused by another driver. Her spouse, Ben, and two children survive her. Alice’s will leaves her estate to a charity. Two types of monetary recoveries may be at issue:

• If the family brings a wrongful death claim for Ben and the children’s loss of support and companionship, the wrongful death award is for their benefit and will be distributed under the wrongful death statute for their benefit — it won’t simply go to the charity named in Alice’s will.
• If there is a surviving claim for Alice’s pre-death pain and suffering or lost earnings before death (a survival action), any recovery for those claims becomes part of Alice’s estate and could go to the charity under the will, subject to probate administration and other priorities (creditors, costs, etc.).

Why the distinction matters

The difference affects who receives money, who can sue, and how much time the beneficiaries have to bring a claim. Because wrongful death damages compensate survivors for their own losses, courts and legislatures often protect survivors by making wrongful death proceeds non-testamentary — i.e., not disposable by the decedent’s will.

Key West Virginia statutes to review

• Wrongful death and survival statutes — West Virginia Code, Title 55, Chapter 7: https://code.wvlegislature.gov/55/7/.
• Probate and intestate succession rules (how estate property passes) — West Virginia Code, Title 42, Chapter 1: https://code.wvlegislature.gov/42/1/.

Bottom line: If you are asking whether a decedent’s will can divert wrongful death proceeds away from the decedent’s surviving spouse or children, the likely answer under West Virginia law is no: wrongful death recoveries are for the surviving family and are distributed under the wrongful death statute. But proceeds from survival claims generally are estate property and may pass by will.

Disclaimer: This article is informational only and is not legal advice. Laws change, and application depends on the specific facts of a case. For advice about a particular situation, consult a licensed West Virginia attorney.

Helpful Hints — What to do next

• Act quickly: wrongful death and survival actions have time limits. In West Virginia, statutes of limitation and other timing rules can be strict; consult an attorney promptly.
• Preserve evidence: keep police reports, medical records, bills, and contact information for witnesses. These documents matter for both wrongful death and survival claims.
• Identify potential claims: a competent attorney will evaluate whether you have a wrongful death claim, a survival claim, or both, and who has authority to bring each claim.
• Know who can sue: typically the personal representative or designated statutory party brings the claims on behalf of survivors and/or the estate.
• Keep estate administration separate: survival action proceeds usually flow through probate and are administered with other estate assets; wrongful death proceeds are distributed for the benefit of survivors under the statute.
• Ask about liens and creditors: some recoveries may be reduced by medical liens, subrogation claims, or estate debts. A lawyer can help identify and resolve these issues.
• Get local counsel: wrongful death and probate law can be complex and locality-specific. A West Virginia attorney can explain how the statutes apply to your family’s circumstances.