Detailed Answer — How Virginia treats wrongful death and survival recoveries

Short answer: It depends. In Virginia, money recovered after a person’s death can come from two different legal claims. Which claim produced the recovery determines whether the funds become part of the decedent’s estate (and therefore pass under the will) or are distributed under the wrongful-death statute to survivors.

Two different claims: survival actions vs. wrongful-death actions

– Survival action: A survival action is the decedent’s own cause of action that survives death. The personal representative (executor or administrator) brings the claim on behalf of the decedent’s estate. Any recovery from a survival action becomes an asset of the decedent’s estate. Those proceeds are administered through probate and distributed according to the decedent’s valid will or, if there is no valid will, under Virginia’s laws of intestate succession. See Virginia wrongful-death & survival statutes: Va. Code §8.01-50 and the wrongful death chapter: Va. Code Title 8.01, Chapter 3.

– Wrongful-death action: A wrongful-death claim is a statutory cause of action created by the Commonwealth for the benefit of certain survivors (for example, spouse, children, next of kin). Although the personal representative usually brings the suit, the recovery is considered for the benefit of the survivors as prescribed by the wrongful-death statute and is not simply treated as a general asset of the decedent’s estate that the decedent could have directed by will. See the wrongful-death statutes: Va. Code Title 8.01, Chapter 3.

Practical consequence

Because the two claims serve different legal purposes, the way recovered funds are distributed differs:

• Money recovered through a survival action (for the decedent’s pre-death injuries, pain and suffering, lost earnings before death, etc.) generally becomes part of the estate and will pass according to the will or, absent a will, under the intestacy rules (Title 64.2). See: Va. Code Title 64.2 (Decedents; Estates; Fiduciaries).
• Money recovered through a wrongful-death action is distributed according to the wrongful-death statute and may go directly to the prescribed survivors or be handled in a specific statutory manner—so the decedent’s will typically cannot override how wrongful-death proceeds are distributed.

Example (hypothetical)

Imagine an individual dies in a car crash. Their personal representative sues the negligent driver for both:

1. a survival claim for the decedent’s pain and suffering and lost wages prior to death — if successful, those damages are collected into the estate and distributed under the will; and
2. a wrongful-death claim for the survivors’ loss — those damages are allocated under the wrongful-death statute to the surviving spouse and children as the statute provides, not simply handed to beneficiaries named in the decedent’s will.

Other important considerations

• Sometimes settlements allocate money between survival and wrongful-death components. That allocation affects whether the funds flow through probate or to statutory beneficiaries.
• Court judgments or settlement agreements commonly specify how proceeds will be divided. Read those documents carefully; they control distribution subject to statute.
• Creditors, liens (including medical provider or insurer subrogation), and funeral expenses can affect the net amount available for distribution.

If you need the exact controlling language in a particular case, review the wrongful-death and probate statutes and any judgment or settlement documents, and consult a Virginia attorney or the local probate court.

Disclaimer: This is general information, not legal advice. I am not a lawyer. For advice about a specific case, contact a licensed Virginia attorney.

Helpful Hints — Steps and practical tips

• Confirm which claim produced the recovery: survival (estate asset) or wrongful death (statutory distribution).
• Request a copy of any settlement agreement, stipulation, or court order showing how proceeds were allocated.
• If recovery was part of the estate, check the will and look for probate filings at the local circuit court; the personal representative handles distributions under the will. See: Va. Code Title 64.2.
• If recovery was wrongful-death proceeds, review the statute and any court order to learn who the statute designates to receive funds. See wrongful-death statutes: Va. Code Title 8.01, Chapter 3.
• Watch timelines: statutes of limitation and probate deadlines can be short. If a claim hasn’t been filed, speak with an attorney promptly.
• Expect possible offsets: funeral bills, medical liens, Medicare/Medicaid reimbursement, and creditors can reduce recoveries.
• Keep careful records: letters of administration, death certificate, medical bills, settlement documents, and communications with insurers or lawyers.
• When in doubt, get a consultation with a Virginia probate or wrongful-death attorney to confirm distribution rules for your facts.