Kentucky Survival Actions vs. Wrongful Death: What Goes in Each Claim

When a loved one dies because of someone else’s negligence, Kentucky law allows two different civil claims to move forward—often at the same time:

• a Wrongful Death claim (for the benefit of the family; filed by the estate’s Personal Representative), and

• a Survival Action (the injury claim the person would have had if they’d lived; belongs to the estate).

Understanding what damages belong in which claim is crucial. It affects who gets paid, how the case is pled, and how a settlement is distributed through probate.

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What is a Kentucky Wrongful Death claim?

• Purpose: Compensation for the death itself caused by another’s negligence or wrongful act.

• Who files: The Personal Representative (PR) of the estate (appointed through probate) files the lawsuit on behalf of the beneficiaries. 

• Damages: Includes compensation tied to the loss of life; punitive damages are allowed if the conduct was willful or grossly negligent. Distribution of the recovery is set by statute (see below). 

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How wrongful-death recoveries are distributed in KY (examples)

Kentucky’s statute spells out who receives what from a wrongful-death recovery (after costs/fees and approved liens). A few common scenarios, illustrative only:

• Spouse with children: the spouse and children share the recovery per statute.

• Spouse, no children: the spouse receives the recovery.

• No spouse, children only: the children receive the recovery.

• No spouse or children: recovery goes to the decedent’s parents, and if none, then to the estate.
  Exact distributions follow KRS 411.130; your PR and probate court will ensure the statutory split is followed. 

Practical note: A spouse may also have a separate loss-of-consortium claim under KRS 411.145; that is distinct from the statutory wrongful-death distribution. 

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What is a Survival Action?

• Purpose: To recover the personal-injury damages the person suffered before death—as if they had survived to bring the case.

• Who benefits: These damages are paid to the estate, then distributed like other estate assets through probate (not by the wrongful-death distribution scheme).

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Typical Survival damages (fact-dependent)

• Pre-death pain and suffering (the conscious period between injury and death).

• Pre-death medical bills for the final injury.

• Lost earnings between injury and death (if any).

• Property damage tied to the incident.
  Kentucky courts recognize future-impact and personal-injury damages when supported by competent proof; the survival claim focuses on the period before death. 

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Wrongful Death vs. Survival Action at a glance

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Why does the distinction matter?

• Pleading the case correctly ensures you don’t miss categories of damages (e.g., pre-death pain and suffering must be claimed in survival, not “wrongful death”).

• Distribution differs: wrongful-death funds bypass normal estate succession in favor of the statute’s beneficiary plan, while survival proceeds pass through the estate. 

• Lien & tax treatment and probate approvals can vary by bucket; courts often review and approve the allocations.

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Probate: appointing the Personal Representative

Both claims require a PR to act for the estate. Families open an estate in the county where the decedent lived and ask the District Court to appoint an executor/administrator. The court’s probate guide outlines the basics; your attorney handles the filings and coordinates approvals for any settlement.

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Settlements: allocating amounts between the two claims

Often, a single case resolves both claims together. We typically:

1. Itemize survival vs. wrongful-death components in the release and/or proposed order.

2. Document the medical bills, conscious-pain evidence, funeral bills, earning records, and punitive-exposure facts.

3. Obtain probate approval (and any minor-settlement approvals) so distribution follows the statute and court orders.

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FAQs

Who actually signs the paperwork?

The Personal Representative signs on behalf of the estate for both the survival claim and the statutory wrongful-death claim.

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Can we bring both claims in the same lawsuit?

Yes. Most wrongful-death cases in Kentucky include both counts so nothing is left on the table.

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How are funeral expenses handled?

Funeral/burial costs are recoverable and typically addressed in the overall allocation and probate order. (Your attorney will document and present them to the court as part of the settlement approval.)

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What are the deadlines?

Deadlines in fatal-injury cases are short and can be affected by when the PR is appointed and other factors. Because limitations are nuanced, contact counsel immediately to protect your rights.

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How Morrin Law Office helps families

• We handle probate and PR appointment so the case can be filed correctly. 

• We preserve evidence in week one (ELD/ECM/cameras/dispatch in commercial-vehicle cases; dock/store video; 911/CAD) so fault can be proven.

• We build both claims: survival (pre-death pain/medical) and wrongful-death (statutory damages and punitive exposure where facts support it).

• We manage distributions and liens so the court’s order cleanly reflects who gets what under KRS 411.130 and the estate. 

• No upfront fees — free consultation; contingency-fee representation.

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References & Further Reading

Kentucky statutes (primary sources)

• KRS 411.130 — Wrongful death; PR must prosecute; distribution; punitive damages possible. Legislative Research Commission

• KRS 411.140 — Survival of actions (personal-injury claims survive to the estate). Legislative Research Commission

• KRS 411.145 — Spousal loss of consortium (separate claim). Legislative Research Commission

• KRS Chapter 395 — Probate / Personal Representative appointment & duties. Legislative Research Commission

Probate guidance

• Guide to Basic Kentucky Probate Procedures (Kentucky Court of Justice). Kentucky Court of Justice

Kentucky case law context

Davis v. Graviss, 672 S.W.2d 928 (Ky. 1984) — recognizes compensable personal-injury damages when supported by competent proof (helpful background for survival claims). Justia Law