Survival Claims Statute of Limitations

Brien Roche

Survival claims are personal injury claims wherein the plaintiff has passed away.  If the passing is due to the injury then the survival claim may be asserted in conjunction with the wrongful death action or may be subsumed by the wrongful death claim.

Survival Claims Statute of Limitations

In regards to the statute of limitations for survival claims where there has been a subsequent death that is unrelated to the injury then the statute of limitations may be more than two years from the date of injury.  The statute of limitations for personal injury claims is two years from the date of injury in Virginia.  If, however, the plaintiff has passed away and no suit has been filed then suit may be filed before the expiration of the two year limitation period or one year after the personal representative qualifies.  See Va. Code §8.01-229(B)(1).  Sub-section (B)(6) then also becomes applicable because if the interval between the date of death and the date of qualification of the personal representative is more than two years then the personal representative is deemed to have qualified within two years of the date of death which would then mean that you have an additional year beyond that to file.  Under that scenario conceivably you could have a plaintiff who dies one day before the two year of statute of limitations runs, (the death is unrelated to the underlying injury) the personal representative does not qualify until more than two years later but suit is filed within three years of the date of death.  Under that scenario, you could have almost five years from the date of injury within which to file for what would be a survival claim.

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For more information on this topic and related matters see the pages on wrongful death on this site.
For more information on statute of limitations see the pages on Wikipedia.