While it’s often said that parents will do anything for their children, the same is true with children who often feel a role reversal once they reach adulthood themselves. This instinct to protect our parents is strong and most commonly crops up when one parent dies, leaving the other to cope with their loss.
When the death of a parent is due to the negligence of another, it’s not uncommon for this instinct to protect to kick in. A child may not want their surviving parent to face the burden of filing a civil lawsuit or perhaps they feel compelled to file a claim because their parent refuses to. Either way, the question remains:
Can an adult child sue for wrongful death after a parent dies?
As we have pointed out before on our blog, it is possible for family members to pursue compensation from a negligent party in the event of a loved one’s wrongful death. However, family members must do so in accordance with state law.
Under §411.130 of our state’s statutes, a personal representative, also referred to as an executor or administrator under probate law, is allowed to file a wrongful death action for damages caused by a negligent party. A personal representative can be a surviving spouse, dependant, adult child or relative and can be appointed in a will or in the absence of a will.
Unfortunately, the specific wording of the law can prevent adult children from suing on behalf of their surviving parent, especially if they have not been named as the personal representative. Kentucky common law also does not allow adult children to file a wrongful death claim on their own behalf to collect damages for loss of parental consortium, as can be seen in Smith v. Vilvarajah.
As have explained before in other posts, filing a wrongful death claim in Kentucky can get complicated a perhaps even frustrating if you don’t understand the law as well as an attorney does. This is why speaking with an attorney prior to filing a claim is such a good idea.