How Are Wrongful Death Settlements Divided in Kansas City?
Posted in Wrongful Death on February 20, 2019
The settlement of a wrongful death case can seem like a relief, but only if the division of the settlement among family members proceeds smoothly. It is important to know the legalities behind the division of such settlements.
When Can You File a Wrongful Death Suit?
If a loved one has died as the result of someone else’s negligence, the surviving family is often able to file a wrongful death suit. In order to prove negligence, the following elements must be present:
- The defendant owed reasonable care. In most situations, defendants must exercise the care expected by a rational person to prevent their actions from injuring others. For example, a person driving a car must obey traffic laws so as not to injure others.
- The defendant failed to exercise reasonable care. An attorney must prove the defendant acted in a way that breached the duty to act with the care of a reasonable person in the same situation. A person driving recklessly fails to follow traffic laws and fails to drive with the care taken by a reasonable person.
- The defendant’s actions led to an injury. The attorney must prove that the failure to act with care caused injuries that would not have otherwise occurred. A person driving recklessly and hitting a pedestrian has caused injury to the pedestrian.
- The defendant’s actions led to damages. Finally, the attorney must prove that the defendant’s actions caused damages to the plaintiff. Damages may include injury, death or emotional damages.
In the case of a wrongful death suit, the plaintiff is the estate of the deceased or a family member. Depending on who filed the suit, the courts can award damages for a death that could not occur but for the actions of the defendant.
Who Can File a Wrongful Death Suit?
Most states allow either a personal representative of the deceased person’s estate, or an immediate family member such as a spouse, parent, or adult child to file a wrongful death suit. Here, we will discuss both Missouri and Kansas, though the nuances of the law in other states may be different.
In Kansas, the deceased person’s estate must bring a wrongful death lawsuit. In most cases, the will names an executor, or administrator, to handle the estate. If not, the courts will appoint one.
In Missouri, the surviving spouse or children have the first opportunity to file a wrongful death suit. If there are none, a surviving brother, sister or their children can file a suit.
How Are Settlements Divided?
In general, if a wrongful death suit reaches a settlement in court, a jury can determine how to distribute the settlement. If the deceased person had a surviving spouse and minor children, the court can appoint a person – known as a guardian ad litem – to ensure the division of the settlement is fair for the children. If all survivors are adults, however, the situation may become complicated.
Survivors who worked together to bring the wrongful death suit often allow the appointed attorney to negotiate a fair division of the settlement, or agree upon division themselves. However, if such an agreement does not occur and the settlement becomes another legal dispute, each may hire an attorney to negotiate division.
Each state maintains its own separate code or statute that generally defines how to divide wrongful death settlements.
- Kansas mandates that the deceased person’s estate first must receive compensation for bringing the lawsuit. Then, the court distributes damages among the deceased person’s heirs by the court. Heirs may decide upon a fair division of the settlement but the court must approve the terms.
- Missouri insists that the court must approve any settlement. Then, the court distributes the settlement among any who suffered loss as a result of the death, in proportion to the losses they suffered.
If you have a wrongful death suit that you want to pursue, speak to a Kansas City wrongful death lawyer today.