Kentucky Wrongful Death vs. Survival Actions: What’s the Difference?
A family member’s death due to someone else’s negligence or intentional wrongdoing is one of the hardest things a person can go through. Along with grief, families often face funeral costs, lost income, and unanswered questions about what happened. Kentucky law allows some family members to seek compensation through wrongful death and survival action cases.
Satterley & Kelley, PLLC attorneys in Louisville get results. We have recovered hundreds of millions of dollars in verdicts and settlements for clients throughout Kentucky, including families involved in survival action and wrongful death cases. If you have questions about how you can obtain compensation for the death of a family member, call us at (855) 385-9532 or locally at (502) 589-5600 today.
Key Takeaway
In Kentucky, a wrongful death action seeks compensation for losses resulting from a person’s death, while a survival action continues claims the deceased person could have pursued for injuries and losses suffered before death. Both claims may be brought by the estate’s personal representative, but the damages and how the proceeds are distributed differ.
What is an Estate?
An estate is the legal entity responsible for a deceased person’s property, assets, and debts that must be gathered, organized, managed, and distributed after the person’s death, typically through the probate process. The goal is to “settle” the estate, which means paying all the legitimate debts and obligations and distributing what’s left. The Probate Court oversees estates, how they’re handled, and ensures that they’re properly “settled.”
Who is a Personal Representative?
T The Probate Court judge appoints a personal representative to administer the estate and oversees that person’s actions. A will can name an executor, subject to the court’s approval. The executor may also pursue or settle lawsuits on behalf of the estate, with court approval when required.
What is a Will?
A will, if properly executed, allows you some control over your assets after you die. You can instruct your personal representative how they should be distributed (after your debts and obligations are paid). Even if you don’t have a lot of assets, there are many good reasons to create one.
Accidental injuries are a significant cause of death in the United States. When a death results from another party’s negligence or wrongful conduct, a wrongful death or survival action may result in substantial compensation. Because some proceeds may become part of the deceased person’s estate, having a valid will can help ensure that estate assets are distributed according to their wishes.
What Is a Wrongful Death Case?
A wrongful death case is a civil claim brought by the estate’s personal representative when a person dies because of the negligence or wrongful act of another person or party. Under Kentucky Revised Statute 411.130, damages may be recovered for a death caused by the negligence or wrongful act of another from the person or party who caused it.
This would be a civil lawsuit, separate from any criminal case brought against the party accused of causing the person’s death. These lawsuits exist to help the surviving family recover financially after a serious loss. To learn more about how Satterley & Kelley, PLLC handles these claims, visit our wrongful death page.
What is a Survival Action?
A survival action is a legal claim that lets the deceased’s personal injury claim continue after they die, rather than ending with their death. The estate’s personal representative brings it, and it covers what the person suffered between their injury and death, including medical bills, physical pain, and lost wages during that period.
What’s the Difference Between Wrongful Death Cases and Survival Actions?
The two are different, and they work together.
- A wrongful death action is the family’s claim for what they lost because of the death (funeral costs, loss of companionship, lost future financial support). Proceeds go to the parties listed in the state statute: spouse, children, then parents. If they predecease the person, the proceeds become an estate asset, which would be distributed according to the deceased’s will. If there is no will, they would go to next of kin as defined by state law
- A personal representative steps in for the deceased as plaintiff in a survival action seeking compensation for things like pain, suffering, and income lost between the person’s injury and death. Proceeds become an asset of the estate. They would be distributed according to the deceased’s will. If there is no will, they would go to next of kin as defined by state law
A personal representative can join and file both claims in a single lawsuit, rather than filing two separate cases.
What are Critical Issues in These Cases?
Wrongful death cases and survival actions can be more complicated than they first appear. Here are some issues to consider:
1. Kentucky’s Filing Deadline Is Short
A wrongful death case generally must be filed within one year of the personal representative’s appointment, and no later than two years from the date of death. A personal injury action has a one-year deadline from the injury to be filed. If the deceased survived the initial injury, dies less than a year later, and failed to file a lawsuit before their death, the personal representative has a year from their appointment to file a survival action. Missing either deadline can end a family’s right to recover compensation.
2. Kentucky’s Comparative Negligence Rule May Apply
Kentucky follows a rule called pure comparative negligence. If the deceased is found partly at fault for the accident that caused their death, the family’s compensation may be reduced by that share of the blame.
3. Punitive Damages May Be Possible in Some Cases
A family may recover punitive damages if they prove, by clear and convincing evidence, that the party at fault acted with the following:
- Oppression: Conduct specifically intended to subject the deceased to cruel and unjust hardship
- Fraud: Intentional deceit, misrepresentation, or concealment of a material fact known by the defendant that caused the fatal injury, or
- Malice: Conduct specifically intended to cause injury to the deceased or that is done with a flagrant indifference to their rights and a subjective awareness that their conduct will cause death or bodily harm
Other kinds of damages compensate for losses. Punitive damages are intended to punish for wrongdoing, and discourage the defendant and others from repeating their actions.
Why Should My Family Retain Satterley & Kelley, PLLC for Our Wrongful Death and Survival Action Cases?
Both involve strict deadlines, detailed evidence, and difficult conversations with insurance companies, all while a family is grieving. Satterley & Kelley, PLLC communicates openly with our clients, explains each step in plain language, and pursues full compensation on behalf of grieving families. We have handled many of these cases in the past and understand the emotional and financial stresses you may be undergoing.
Frequently Asked Questions
What is the deadline to file a wrongful death or survival action case in Kentucky?
Generally, one year from when a personal representative is appointed, and no later than two years from the date of death, for a wrongful death case. If no personal injury action is filed before the deceased’s death, the personal representative has a year from their appointment to file a survival action.
Who receives the money from wrongful death and survival action cases?
The order of priority for wrongful death cases generally starts with a surviving spouse or children, then parents. If there are none, proceeds go to the estate. Survival action proceeds go to the estate, where they’re divided according to a will or Kentucky intestacy law.
Can our family recover punitive damages?
Kentucky law allows punitive damages when it’s proven by clear and convincing evidence that the at-fault party acted with oppression, fraud, or malice.
What if our loved one was partly at fault?
Kentucky’s pure comparative negligence rule may reduce compensation, but it does not automatically bar a claim.
What compensation can our family recover?
Through these lawsuits, families may recover funeral and burial costs, medical bills, lost future earnings, and pain and suffering the deceased suffered before their death.
Consult with a Louisville Wrongful Death Lawyer Near You
Satterley & Kelley, PLLC helps injured Kentucky residents and grieving families get the compensation they deserve. Contact us to schedule a free consultation to discuss your situation, how Kentucky law may apply, and your best options for compensation. Call us at (855) 385-9532, locally at (502) 589-5600, or contact us online today.