Wrongful death statutes in both Missouri and Kansas have been expanded, unlike many of the rights of personal injury victims. Missouri now allows more "classes" of claimants to bring an action for wrongful death. Kansas has become slightly more generous with regard to artificial caps on noneconomic damages. This article compares Missouri and Kansas law regarding who is entitled to bring the action and recover. Other articles in this website compare Missouri and Kansas laws concerning survival damages, recoverable damages, aggravated circumstances and punitive damages, apportionment and settlement, and lost chance of survival.
MISSOURI AND KANSAS WRONGFUL DEATH LAWS ARE SIMILAR BUT DIFFERENT
Missouri and Kansas wrongful death laws have much in common. Where they differ is with respect to their statutes of limitations (the amount of time in which suit can be brought), the parties who are allowed to bring the action, and the damage cap in Kansas versus no such cap in Missouri.
THE PARTIES ALLOWED TO BRING THE ACTION
MISSOURI STATUTORY LAW: RSMo 537.080 provides as follows:
Whenever the death of a person results from any act, conduct, occurrence, transaction, or circumstances which, if death had not ensued, would have entitled such person to recover damages in respect thereof, the person or party who, or the corporation which, would have been liable if death had not ensued shall be liable in any action for damages, notwithstanding the death of the person injured, which damages may be sued for:
1) By the spouse or children or the surviving lineal descendants of any deceased children, natural or adopted, legitimate or illegitimate, or by the father or mother of the deceased, natural or adoptive;
2) If there be no persons in class (1) entitled to bring the action, then by the brother or sister of the deceased, or their descendants, who can establish his or her right to those damages set out in section 537.090 because of the death;
3) If there be no person in class (1) or (2) entitled to bring the action, then by a plaintiff ad litem. Such plaintiff ad litem shall be appointed by the court having jurisdiction of the action for damages provided in this section upon application of some person entitled to share in the proceeds of such action. Such plaintiff ad litem shall be some suitable person competent to prosecute such action and whose appointment is requested on behalf of those persons entitled to share in the proceeds of such action. Such court may, in its discretion, require that such plaintiff ad litem give bond for the faithful performance of his duties.
Notably, the decedent's biological minor children, adult children, adopted children, and illegitimate children are all included in the category of individual who can bring a wrongful death suit. Stepchildren are not included. However, equitable adoption is available if it can be shown that the child will suffer financial harm.
Only a legally married spouse may recover in Missouri. In Kansas, a spouse legally married by common law marriage can recover. Remarriage is not allowed to be used as a mitigating factor in Missouri or Kansas.
Parents have first priority to bring a wrongful death action for unmarried minor children who do not have children of their own. A parent cannot recover if parental rights have been terminated. Paternity must be established if it is in issue before settlement is apportioned.
If there are no individual who qualify in the first category, brothers or sisters are entitled to bring the action. This does not include stepbrothers or stepsisters.
KANSAS STATUTORY LAW: KSA 60-1902 provides:
The action may be commenced by any one of the heirs at law of the deceased who has sustained a loss by a reason of the death. Any heir who does not join as a party plaintiff in the original action but who claims to have been damaged by reason of the death shall be permitted to intervene therein. The action shall be for the exclusive benefit of all of the heirs who has sustained a loss regardless or whether they all join or intervene therein, but the amounts of their respective recoveries shall be in accordance with the subsequent provisions of this article.
Heir, as used in the Kansas statute, means someone who takes by intestate succession under Kansas statute. If the decedent has a surviving spouse or surviving children, the intestate succession in Kansas does not include parents or siblings as heirs. If parental rights have been terminated, the parent and the child of a decedent parent are excluded from those who can bring a claim for wrongful death.
Has A Loved One Died Due To The Negligence of Others?
If your loved one has died due to the negligence of someone else an experienced wrongful death attorney can help you hold them responsible. Contact us online or call our Kansas City office directly at 816.471.5111 to schedule your free, no obligation consultation.