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  • The Miley Legal Group
  • 229 West Main Street
    Clarksburg, WV 26301
  • Phone: 304.931.4088
  • Fax: (304) 326-1801
  • Toll Free: 888.436.0859
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Who Can File a Wrongful Death Claim and Who Can’t File

Tim Miley
Injury Lawyer, Author, & Owner of The Miley Legal Group

After learning that a loved one’s death was caused by someone else’s negligence, the next step for a family is to file a wrongful death claim. Whether it was a traffic or hunting accident, medical malpractice, or a defective product, compensation may be available. First, it’s important to understand who can file a wrongful death claim according to West Virginia law.

Eligibility for Those Who Can File a Wrongful Death Claim

Those who cannot file a wrongful death claim in West Virginia are people who have not been named as personal representatives of the deceased’s estate. Only an individual who has been appointed by the state can pursue this legal action. This may or may not be a family member.

The role of the personal representative is to handle not only the filing of the claim, but also the financial matters. If there was a will, the individual is appointed as an executor, and if there isn’t, he or she will be appointed as an administrator. Whatever the case, all appointments of who can file a wrongful death claim have to be granted by a court.

Distribution of Damages in a Wrongful Death Claim

If the personal representative is a family member entitled to damages, those are awarded based on a fair and just amount. Let’s say a spouse has been appointed as the personal representative. He or she may be able to recover damages for mental anguish and solace (companionship and comfort) and the loss of income (which may include the expected value of earnings had the person lived).

But the personal representative is also responsible for paying off what a jury deems as reasonable medical and hospital expenses, along with funeral costs. In fact, those expenses are the responsibility of the personal representative to handle, even if not entitled to additional damages. An amount may be awarded separately to address those. 

Damages may be distributed to other members of the family, such as the children. They could be compensated for the loss of protection, care and guidance of a parent. Others may also qualify -- such as stepchildren, siblings, parents and others who were financially dependent on the deceased.

Time Limits on Who Can File a Wrongful Death Claim

It can take time to go through the process of being appointed as a personal representative. So it’s important to act quickly because there are time limits in which a wrongful death claim can be filed.

In West Virginia, it is two years from the date of death. This typically applies to cases in which it’s known what the cause of death was, such as a car accident. Sometimes there can be an extension put on those time limits. For instance, it may be two years from the date the injury reasonably should have been detected.

An example where this can apply is with medical malpractice. Sometimes it’s not immediately known if the death was caused by negligence. It could be that a doctor had misdiagnosed the patient. As a result, what would have been a treatable condition became a fatal one. Because it could take a significant amount of time to detect and prove, this may allow for the time limits on filing to be extended.

Seeking Legal Counsel for Those Who Can File a Wrongful Death Claim

There sometimes can be complications that arise with filing a claim, including the appointment of a personal representative, or there is concern about who is entitled to recover damages. But even without the issues of who can file a wrongful death claim and who is entitled to damages for a Clarksburg wrongful death claim, these types of claims can escalate quickly from simple to difficult if a liable party needs to disperse monies for damages or if family members are unhappy with their awards.

If you have more questions about being a beneficiary in a wrongful death claim or if you perceive that the dissemination of claim monies won’t be well received by those involved, you should consult a Clarksburg wrongful death attorney like the Miley Legal Group before important paperwork is filed: (304) 931-4088.

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