Introduction

In cases where a person has died (the “decedent”) because of the negligence of another, the Personal Representative of the estate may be called upon to pursue a lawsuit on behalf of the decedent’s next of kin.  These types of lawsuits are generally referred to as “wrongful death” actions.   While wrongful death actions can arise under many different circumstances, one particular type of wrongful death action that gets much attention in the law relates to a substance known as asbestos.  Asbestos is known to cause the deadly disease known as “mesothelioma,” and mesothelioma almost always gives rise to an action for wrongful death.  In Kentucky, the pursuit of a mesothelioma or other wrongful death case is the responsibility of the Personal Representative of the estate.

The Kentucky Wrongful Death Statute

Kentucky’s wrongful death statute is found at KRS 411.130.  This statute formally establishes the right to bring a wrongful death action by providing for the recovery of damages when the death of a person results from “the negligence or wrongful act of another” person or entity.   In a mesothelioma case, the defendants are typically corporations who were the manufacturers or sellers of products containing asbestos.  In other wrongful death cases, the defendants may, for example, be negligent drivers of automobiles or other persons who have intentionally or negligently inflicted injury on the decedent.

KRS 411.130 also requires (1) that the wrongful death action be prosecuted by the decedent’s Personal Representative, and (2) that the damages recovered be distributed to the decedent’s next of kin.

Appointment and Duties of the Personal Representative

A Personal Representative of a decedent’s estate is the person appointed by the probate court to manage and wind up the decedent’s property affairs.  If the decedent has left a Will that names a Personal Representative, the probate court will generally follow the decedent’s wishes and appoint the person designated by the decedent’s Will.  This type of Personal Representative is known as an “Executor.”  If the decedent had no Will, a relative of the decedent or other interested party may apply to be appointed as the decedent’s Personal Representative, and in this case, the Personal Representative is called an “Administrator.”

Typical duties for a Personal Representative include locating assets of the decedent, paying the decedent’s final taxes and debts, and distributing the remaining assets to the beneficiaries of the estate.  Kentucky law imposes additional duties upon a Personal Representative where a wrongful death lawsuit is filed based on mesothelioma and other wrongful act.  This is because KRS 411.130 specifically requires such cases to be filed and prosecuted by the Personal Representative.    When a wrongful death action is filed by a Personal Representative, additional duties can include the following:

  1. Finding and retaining a law firm to handle the wrongful death case. In routine cases, the law firm assisting the Personal Representative with the probate of the decedent’s estate may also handle the wrongful death case.  In more complicated cases, such as those involving mesothelioma, a different law firm may be required because of the specialized nature of the litigation.  Selection of the appropriate, qualified law firm is crucial for the Personal Representative so that the interests of the beneficiaries of the estate are adequately protected.
  1. Determining the Appropriate Venue for the Litigation.  In a normal wrongful death case, the venue of the lawsuit (i.e., location where the lawsuit is filed) will usually be in the county of the defendant’s residency or where the injury to the decedent occurred.  Under certain circumstances, the lawsuit may be filed in a federal court, depending on the residences of the parties involved.  In mesothelioma cases, some jurisdictions have also created special courts that may be used for the filing of the wrongful death action.  If more than one venue is available, the Personal Representative must weigh factors such as whether a particular court’s jurors would be more favorable or hostile to the wrongful death claim in determining where to file the lawsuit.  Again, the selection of an experienced law firm will assist the Personal Representative in choosing the best venue for the lawsuit.
  1. Timely Filing the Lawsuit.Laws called “statutes of limitation” restrict the amount of time that a Personal Representative has to file a mesothelioma or other wrongful death claim. Sometimes, depending on the type of claim, the lawsuit must be filed within one (1) year of the decedent’s death. Therefore, in cases where a mesothelioma or other wrongful death action will be filed, it can be very important to have the Personal Representative appointed as soon as possible after the decedent’s death.

Distribution of Damages to Next of Kin

KRS 411.130 directs that amount of damages recovered in a mesothelioma or other wrongful death case shall be distributed to the decedent’s next of kin, as follows:

  1. If the decedent leaves a surviving spouse but no children, then the amount will be distributed 100% to the surviving spouse;
  2. If the decedent leaves a surviving spouse and children, then the amount will be distributed 50% to the surviving spouse and 50% to the children;
  3. If the decedent leaves children but no surviving spouse, then the amount will be distributed 100% to the children;
  4. If the decedent leaves no surviving spouse and no children, then the amount will be distributed to the decedent’s parents, or the survivor of them;  and
  5. If the decedent leaves no surviving spouse, no children and no parents, then the amount will become part of the decedent’s estate and pass to his or her next of kin as determined under Kentucky’s law of descent and distribution.

Prior to making the distribution of the damages to the decedent’s next of kin, the Personal Representative is entitled to deduct the decedent’s funeral expenses, the costs of the administration of the decedent’s estate, and the cost of attorney’s fees associated with the wrongful death action.  Costs of administration can include the Personal Representative’s fee and the costs of probate, but they do not necessarily include claims of general creditors against the decedent’s estate.  Furthermore, the determination of the Personal Representative’s fee may be based on a number of factors, and the amount is generally limited to 5% of the value of the decedent’s estate unless the Personal Representative  submits proof to the probate court that he or she has provided unusual or extraordinary services to the estate.  Therefore, it is very important for the Personal Representative to seek legal advice for assistance in determining which costs should be paid from the damages that have been recovered and the amount of the Personal Representative’s fee.

It should be noted that the distribution scheme established by KRS 411.130 is mandatory, and it may not be altered by the decedent’s Will.  For example, this means that if the decedent leaves a wife and children, the children will receive 50% of the wrongful death proceeds even if the decedent’s Will leaves all of his or property to the surviving spouse.

Conclusion

Mesothelioma lawsuits and other wrongful death actions add a layer of complexity to a probate case.  The Personal Representative is charged by Kentucky law with the responsibility of prosecuting a wrongful death action, and the Personal Representative has a fiduciary duty to the decedent’s next of kin to make sure that the lawsuit is handled such that the interests of the decedent’s next of kin are protected and maximized.  The Personal Representative must also ensure that only appropriate expenses and reasonable fees are paid from the wrongful death recovery.  Because of the high duties placed on the Personal Representative, the Personal Representative’s decisions will be closely scrutinized by the decedent’s next of kin and the beneficiaries of the decedent’s estate.  Therefore, for the assistance and protection of the Personal Representative, it is strongly recommended that the Personal Representative seek the advice of an experienced probate attorney as he or she handles a mesothelioma or other wrongful death case.


These materials are designed to provide general information prepared by professionals in regard to the subject matter covered. It is provided with the understanding that the author is not engaged in rendering legal, accounting, or other professional service. Although prepared by professionals, these materials should not be utilized as a substitute for professional service in specific situations. If legal advice is required, the service of a professional should be sought.