Judge Fails to Overrule Child Beneficiaries in Virginia Wrongful Death Action

I was very pleased to read a recent case write-up in Virginia Lawyers Weekly in which a judge was prevented from overruling the parents’ legitimate decision about what to do with money from the death of one of their children and how they thought it should best be used for the brother and sister of a deceased child.

The appeals court in Virginia ruled that the judge could not overrule a legitimate and reasonable plan set up by the rightful decision-makers in a wrongful death action, namely the parents who had been together qualified as the personal representative. Under Virginia wrongful death law, the action is handled by a personal representative who is typically a family member who gets to make the decisions about whether to bring the suit, where to bring it and any settlement of the suit. Additionally once there is money to be divided up either by verdict or settlement it is the personal representative who is the key decision-maker and the person to whom the money is paid.

This recent Virginia appellate court decision from the Supreme Court of Virginia made clear that there are limits to the trial judge’s discretion in trumping or changing a legitimate plan for disbursement of the money. This is good because some judges, unfortunately, think that they know better than the attorneys’ parents and guardian ad litems who are all also looking out for the children and trying to protect their interests as they’re required to do.

In the particular case in Southampton County, Virginia the trial judge was presented with a detailed plan that had already been agreed to by the parties that said that trustees should be appointed, and a trust should be held for the two minor children for the money that they would get as statutory beneficiaries related to their sibling’s death.

The personal representatives have fiduciary duties meaning they have to look out for the best interests of the statutory beneficiaries of this case the minor children. Obviously they’d spent plenty of time and money organizing a plan for handling the fairly large sums for their children arising out of the tragic death of their son. Unfortunately, the judge thought that it was within his discretion to simply say he was not going to allow those trusts to be created and instead hold the money with the court until the kids turn 18.

The plaintiff’s lawyer was somewhat charitable in his comments about the judge saying that he was just looking out for the children. However, I often feel as a 25‑year‑veteran personal injury and wrongful death attorney that the judges simply have a knee-jerk reaction to anything more complicated than sticking the money with the court. The problem with sticking the money with the court is it earns far less interest than can be safely earned in a structured settlement or trust vehicle.

This means that the child will ultimately receive less money than he or she would if the judge allowed a private bonded trustee to invest the money rather than the sub‑prime interest rate earned by the court which is typically 1 percent these days. Also, the trust mechanism provides much more flexibility both until the children turn 18 if they have some urgent need for healthcare or something beyond what the family could otherwise afford. There’s also flexibility after age 18 to allow the money to be held by the trust so that somebody other than an 18 or 19‑year-old child is making investment decisions and decisions about what money should be distributed and when. It is completely a more sensible solution and fully allowed by Virginia law.

I am pleased that the Supreme Court of Virginia explained to this trial judge and trial judges in circuit courts across Virginia about the limits of their role in the wrongful death approval process and in cases where there is a child as one of the statutory beneficiaries. This situation happens all the time. Almost every year I will resolve a case or two that involves wrongful death where the young person killed either has children who are not yet 18 or who is themselves a minor with brothers and sisters who are under the age of 18. This case will provide better guidance to the court and the need for them to permit solutions that work better for the family as long as they are reasonable.

If you have lost a loved one in Virginia, call Cooper Hurley Injury Lawyers at 757.455.0077 for a free consultation.