Home > Research Legal Advice > Wrongful Death > In a case of wrongful death. Will I receive the proceeds of the settlem...
Asked 3 months ago - Louisville, KY
FlagMy mother recently died as a result of negligence on the part of a nursing home. My brother and sister did not assist in providing monetary support for her of any kind. Her Will only listed me to receive any proceeds left in her estate.
In Kentucky, wrongful death actions are prosecuted by the personal representative of the Estate (Executor if there is a Will), but any proceeds recovered for wrongful death pass outside of the Estate, after funeral expenses and the cost of administration. Pursuant to KRS 411.130, wrongful death proceeds are divided equally among the children, if there is no surviving spouse. However, if there is a viable claim for pain and suffering, these proceeds would go into the estate. If the case settles, the children will either have to agree to allocate the amounts between the wrongful death claim and the personal injury claim, or submit the issue to an arbitrator for a decision.
The law of Kentucky may be different from other parts of the country, so you need to consult with a local attorney. In most states, a will determines how proceeds recovered on behalf of the estate are to be divided. But the will generally does not determine how to distribute proceeds among surviving siblings for the loss of the relationship with their mother. That division will likely be decided based on the quality of each person's relationship with the parent. If you and your siblings are unable to agree to a division, then you should each retain separate attorneys. In an action to divide the wrongful death proceeds, your attorney will present evidence about the strength of your relationship with your mother and argue that you should be entitled to a larger part of the settlement than your siblings.
I assume you have a lawyer. If not, you should consult one before settling. I dont know KY law. if the estate has sued, money it recovers passes through the probate estate. If you are the only one to get money in the estate, then that would be yours. Many states allow designated heirs/relatives standing to file lawsuits for damages they have suffered due to the death. That can be for losing financial support they were receiving from the decedent, and can also be for loss of the relationship, sometimes referred to as loss of society, comfort, and support. In many states the law recognizes that different family members have had different relationships with the decedent, some may have been very close and some may not have had any contact for years. Therefore the loss of the relationship is different for each person, and thus they may not all share equally in the settlement funds. Most states require that all possible claimants be part of the settlement or lawsuit. Monies can be allocated either by agreement, trial, or arbitration.
Depending on what Ky law will assist in determining how proceeds are distributed. If you and your siblings have an attorney in KY, that attorney will tell you who the settlement proceeds go to. Unless KY law is very different, the will is not going to be dispositive or may even be a factor in how to distribute. Arguably you each lost your parent and suffered a similar loss. If you don't have an attorney, get one. Most of the time, I have gotten all parties together and get things worked out before going before a judge in a hearing.
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