Legal Memorandum: Survival of Causes of Action in VA

Issue: If a cause of action is not complete until at or after decedent’s death, can it be brought afterwards in the state of Virginia?

At common law, a contract cause of action against a party generally died with the defendant.  Rutter v. Jones, Blechman, Woltz & Kelly, 568 S.E.2d 693, 695 (Va. 2002). 

However, Virginia adopted Va. Code Ann. § 8.01-25 in derogation of common law to provide limited exceptions to the general rule.  The Virginia statute “specifically limits survival of actions to those that ‘existed’ prior to the decedent’s death.”  Rutter, 568 S.E.2d at 695.  If the cause of action is not complete until at or after decedent’s death, it did not “exist” before death and hence cannot be brought afterwards.  Id.  Furthermore, a claim for breach is not complete and thus does not “exist” unless and until plaintiff is damaged.

“[D]uring the Testator’s lifetime, no beneficiary has anything more than a bare expectancy and no person has suffered any injury or damage as a result of his tentative dispositions.”  Van Dam v. Gay, 699 S.E.2d 480, 482 (Va. 2010).  This is so because “a testator may, during his lifetime, alter his will or other testamentary papers as he pleases and whenever he chooses” and a will has “no life or force” while the testator is alive.  See Schilling v. Schilling, 695 S.E.2d 181, 183 (Va. 2010).

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