Detailed Answer

Disclaimer: I am not a lawyer and this is not legal advice. This article explains how the process usually works under Virginia law and what you can do to help ensure a wrongful death settlement is filed with the court and distributed according to your agreement.

Who must bring and approve a wrongful death claim in Virginia?

In Virginia, wrongful death claims are typically prosecuted by the decedent’s personal representative on behalf of the persons entitled to recover. The controlling statute is the wrongful death statute: Va. Code § 8.01-50. Before any settlement or distribution, confirm that a properly appointed personal representative has authority (letters testamentary or of administration) from the circuit court where the estate is being administered.

Key documents you should insist on

1. Written settlement agreement: A signed, detailed agreement that states the gross settlement amount, allocation between wrongful death and any survival claim (if applicable), attorneys’ fees, expenses, liens or subrogation amounts, and the net amount to be paid out to beneficiaries.
2. Itemized fee/cost statement: A lawyer’s itemized calculation of fees, costs, and any contingency fee percentage, so the court can see the basis for the attorney’s fee award or approval.
3. List of liens and subrogation claims: Identify medical providers, health insurers, Medicare or Medicaid interests, and any other creditors asserting claims against the recovery.
4. Proposed order for distribution: A draft court order that asks the circuit court to approve the settlement and direct disbursement to named payees in specified amounts or percentages.
5. Releases and satisfaction documents: Releases signed by authorized parties and a proposed form of satisfaction of judgment or dismissal once the court approves and funds are distributed.

Step-by-step process to make sure the settlement is filed and split as agreed

1. Confirm authority and appointment: Verify the plaintiff is the personal representative and obtain certified letters testamentary or of administration from the circuit court. The court’s appointment gives the representative authority to settle wrongful death claims on behalf of entitled parties.
2. Negotiate and reduce the agreement to writing: Make sure the settlement agreement clearly states how funds will be allocated. If the recovery covers both a survival action (damages belonging to the estate) and wrongful death damages (for the benefit of heirs), the agreement should specify the dollar allocation or formula. Clear allocation prevents later disputes and helps resolve lien and tax issues.
3. Address liens and subrogation before filing: Identify all potential lienholders (medical providers, hospitals, insurers, Medicare/Medicaid). Obtain written payoff figures or agreements when possible. Medicare and Medicaid have statutory or regulatory recovery/subrogation rights; resolving those before asking the court to approve distribution prevents re-opening the settlement later.
4. Prepare a motion or petition for court approval with a proposed order: File a motion or petition in the circuit court that appointed the personal representative, attaching the settlement agreement, the itemized attorney fee statement, lien details, and a proposed order directing distribution pursuant to the agreement. Request that the court approve the settlement and order the clerk or designated escrow agent to disburse funds according to the proposed distribution.
5. Get the court’s signature and entry of the order: Do not disburse significant funds until the court has signed the order (or otherwise authorized the distribution). A signed order protects the personal representative and payees and creates a clear record of how the court approved the split.
6. Use a trusted escrow or the court clerk for distribution: Many settlements are paid into an escrow account pending the court’s signed order. The order can direct the escrow agent or court clerk to pay specific amounts to attorneys, lienholders, beneficiaries, and the estate. Using escrow and a court order reduces the risk of accidental misdistribution.
7. Protect minors or incapacitated beneficiaries: If any beneficiary is a minor or legally incapacitated, the court will typically require additional protections: a guardian ad litem, a conservatorship/guardianship, or court-ordered trust/structured settlement. Ask the court to approve the form of distribution to minors in the proposed order to avoid future challenges.
8. Obtain releases from all entitled parties and lienholders: Before final disbursement, collect fully executed releases from the personal representative and beneficiaries and documentation showing lien payoffs or lien releases. Keep originals in the estate’s file and file copies with the court as required.
9. File closing documents with the court: After distribution, file proof of disbursement, receipts, and a satisfaction of judgment or agreed dismissal. If the estate remains open, include the settlement accounting in the estate inventory or final accounting so the court record reflects the outcome.

What the court will review

The circuit court will typically review whether the settlement is reasonable, whether the attorney fee is fair and customary given the contingency agreement and services performed, whether liens were appropriately handled, and whether the proposed distribution follows statutory priorities and beneficiaries’ rights. The court’s approval creates a judicial record that helps enforce the agreed split.

Relevant Virginia statute

For the basic wrongful death framework, see Virginia’s wrongful death statute: Va. Code § 8.01-50. That statute explains who may bring the action and the general purpose of wrongful death recovery. For detailed procedural and estate issues, consult the Virginia Code and local circuit court practice or speak with an attorney admitted in Virginia.

When you should get a lawyer involved

If there are multiple beneficiaries, contested splits, unresolved liens (especially federal programs like Medicare/Medicaid), minors or incapacitated beneficiaries, or disputes over attorney fees, get counsel. An attorney experienced with Virginia wrongful death cases can prepare the motion and proposed order, negotiate lien resolution, and handle hearings so the distribution is safe and final.

Helpful Hints

• Insist on a written settlement allocation before asking the court to approve anything.
• Get certified letters showing who is the personal representative; do not accept informal authority alone.
• Document every payoff and lien release in writing and include them with the court submission.
• If minors are involved, ask the court for specific instructions or for a guardian ad litem to protect their interests.
• Use escrow or the clerk’s office for holding funds until the court signs the distribution order.
• Keep copies of the signed settlement, the court order, releases, and all bank/escrow disbursement records in the estate file.
• Consider mediation if beneficiaries disagree—courts often favor settlements resolved without protracted litigation.
• Act promptly to avoid statute-of-limitations issues or claims by creditors; consult counsel early.

Following these steps will help create a clear record for the circuit court and reduce the chance of later disputes. For advice about your specific case and to prepare the paperwork the court will expect, consult a Virginia-licensed attorney.