Detailed Answer — How Kansas law treats wrongful death proceeds
Short answer: Under Kansas law, a wrongful death action is a statutory claim brought for the benefit of the decedent’s survivors, and money recovered for wrongful death generally does not pass as part of the decedent’s probate estate under the decedent’s Last Will and Testament. Instead, recovery is distributed to survivors according to the wrongful-death statute and related rules. By contrast, a separate survival action (damages the decedent personally suffered before death) is an asset of the decedent’s estate and may pass under the will.
Why this difference matters: Kansas distinguishes two separate legal claims that can arise from a fatal injury: (1) the wrongful death claim, created by statute and intended to compensate surviving family members for losses tied to the death; and (2) the survival claim, which seeks recovery for harms the decedent personally suffered before death (for example, pain and suffering, medical expenses incurred by the decedent). The first is for the survivors; the second is for the estate.
The wrongful-death statute in Kansas can be found in Chapter 60 of the Kansas Statutes Annotated (K.S.A. 60-1901 et seq.). For the text and specific language, see the Kansas Revisor of Statutes: K.S.A. Chapter 60 (Civil Procedure), and specifically the wrongful death provisions under 60-1901 and following.
Who recovers wrongful death proceeds in Kansas?
Kansas law sets out who can bring a wrongful death action and who receives any recovery. Typically, the beneficiaries are the decedent’s spouse, children, and potentially other dependent relatives. A personal representative may file suit on behalf of those survivors. Because the wrongful death right is statutory and intended for survivors, the funds are distributed to those persons rather than becoming a general asset of the decedent’s probate estate governed by the Will.
What about a recovery that belongs to the decedent (survival damages)?
Damages that belong to the decedent—often called survival damages—are different. Those damages compensate the decedent for pre-death losses (medical bills, pain and suffering before death, lost earnings the decedent personally experienced). Survival damages are assets of the estate and generally pass under the decedent’s estate plan, including the Last Will and Testament, or by the laws of intestacy if there is no valid will.
Practical consequences
- If you are a beneficiary under the decedent’s will but not a statutory wrongful-death beneficiary (for example, a residuary legatee named in the Will who is not a spouse or child), you generally will not receive wrongful death proceeds.
- If a settlement or verdict includes both wrongful-death and survival elements, parties commonly allocate the total recovery between the two categories because allocation affects who receives the money (survivors vs. estate) and tax/creditor implications.
- Courts and attorneys often negotiate or ask the court to approve an allocation between wrongful-death and survival damages. That allocation can affect distributions and possible probate procedures.
Where to find the Kansas statute
Review the wrongful death statute and related provisions on the Kansas Revisor site for the precise language and procedural rules: https://www.ksrevisor.org/statutes/chapters/ch60/ (see the sections titled for wrongful death / survival actions).
When to consult an attorney
Because the legal and practical distinctions between wrongful death and survival claims determine who gets paid and how a recovery is split, consult an attorney experienced in wrongful death and probate as soon as possible. An attorney can advise on statutory beneficiaries, appropriate allocation between claims, potential need for court approval, and how a settlement will affect your rights under a will or under intestacy rules.
Disclaimer: This article is educational only and does not constitute legal advice. For advice about a specific situation, consult a licensed Kansas attorney.
Helpful Hints — Steps to protect rights and understand distribution
- Identify which claims exist: determine whether the case includes a wrongful death claim, a survival claim, or both.
- Locate the statute and read the exact language: review K.S.A. 60-1901 et seq. on the Kansas Revisor site to see how Kansas frames parties and distribution.
- Gather documents: death certificate, medical records, bills, proof of relationship (marriage certificate, birth certificates) for survivors who may be eligible.
- Preserve evidence: preserve police reports, photographs, witness contact info, and employer records for lost earnings.
- Hire counsel early: a wrongful death attorney can file the claim, negotiate allocation between wrongful death and survival damages, and coordinate with the probate attorney if estate assets are involved.
- Ask about allocations in settlement: if settling, insist on a clear written allocation between wrongful death and survival damages so you know who will receive which portion.
- Consider court approval when minors are involved: settlements on behalf of minor beneficiaries or minors’ interests may need court approval or a guardian ad litem.
- Mind the statute of limitations: Kansas wrongful-death and related tort statutes have time limits for filing claims. Confirm the applicable deadline with an attorney promptly.
- Coordinate with probate counsel: if survival damages are part of the recovery, a probate attorney will help ensure correct handling of estate assets and distributions under the Will.