Wrongful Death Actions in Kentucky
In Kentucky, a Wrongful Death action is governed by the KRS 411.130. This, in effect, states that if the death of a person is the result of an injury inflicted by the wrongful act or negligence of another, damages may be recovered from that person, or their agent or servant. Punitive damages may also be recovered if the act was wilful or the negligence was gross. The lawsuit must be brought by the personal representative of the deceased. A wrongful death claim is a personal injury claim in which the injured party is no longer able to file a claim for compensation but is, instead, represented by family members.
Appointing a Personal Representative
To file a wrongful death lawsuit, someone must appear before a probate court, which is the District Court in Kentucky, and qualify as a personal representative of the deceased. If the deceased has left a will that names a Personal Representative, the courts will usually follow the decedent's wishes, and this person becomes the "Executor." If there is no will, a member of the deceased's family or another interested party may apply and they will be the "Administrator."
Filing a Claim
The Personal Representative, at this point, will want to hire a knowledgeable Kentucky attorney to help with the myriad legal responsibilities and duties they will be called upon to perform, including but not limited to; finding the decedent's assets, paying final taxes and debts, and distributing final assets to the beneficiaries. Now the wrongful death claim can be filed, and usually the same law firm that helped with the probate of the estate will continue on as representatives. A wrongful death action is complicated because of the large amount of money at stake, and in Kentucky, damages are only allowed for conscious pain and suffering. Time is of the essence and the claim should be filed by your attorney as soon as possible after the Personal Representative is appointed to avoid conflict with the statute of limitations on your claim.
Prior to the distribution of the claim, the Personal Representative is allowed to deduct funeral expenses, costs associated with the administration of the estate and the attorney's fees for filing the wrongful death claim. The distribution of the remainder of the estate generally goes as follows: If the deceased leaves a spouse but no children, the spouse receives 100% of the disbursement. If the deceased leaves a spouse and children, 50% goes to the spouse and 50% to the children. If there is a child or children and no spouse, 100% goes to them. When there is no spouse or child, the parents receive 50% each or in the case of only one surviving parent, 100%. According to the law of descent and distribution, if there is no spouse, child or parents the estate will then pass to more remote next of kin.
Any additional claims on the deceased estate, other than the allowable deductions, is subject to the interpretation of the law. They do not necessarily include claims of general creditors, and if the Personal Representative's fee, which is generally 5% of the estate is higher, they must submit proof to the probate court that they provided unusual or extraordinary service to the estate.