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Can Family Sue Wrongful Death?

When someone dies due to the negligence or other wrongful act of another person, company or entity, the survivors may be able to file a wrongful death lawsuit.

In New York, a child, parent or spouse of the deceased can pursue a wrongful death lawsuit. The wrongful death claim must be filed by a personal representative of the estate on behalf of the survivors who suffer damage from the decedent’s death. The children include adopted children. If there are no immediate family members who survived the death of the individual, then a sister, brother, niece or nephew may be entitled to file a wrongful death lawsuit.

The New York Estate Powers and Trust Law (EPTL), Article 5, Part 4, (5-4.1 – 5-4.6), is New York’s wrongful death statute. Damages are determined by the court in an amount it determines to be “fair and just compensation” for the financial damages resulting from the decedent’s death. It is designed to compensate survivors for “reasonable expenses” including medical expenses and funeral expenses, “in addition to every other lawful element.” Punitive damages, which serve as punishment in cases of recklessness or depravity, are also allowed.

In a successful wrongful death lawsuit, compensation may be awarded for funeral and medical costs, loss of earnings, and lost benefits including, but not limited to, loss of support, voluntary assistance, and possible inheritance. Minor children who are survivors of the deceased may recover for the loss of parental guidance and training. Survivors may not, however, recover for mental anguish.

New York law also determines how a wrongful death award will be distributed among claimants when more than one survivor qualifies for compensation. According to the law, an award will be divided as follows:

  • A spouse and no children — the whole to the spouse.
  • A spouse and children — $50,000 and half of the balance of the estate to the spouse, and the remainder divided equally among the children as long as they are in the same generation.
  • Children and no spouse — the whole to the children, divided equally as long as they are in the same generation.
  • One or both parents and no spouse and no children– the whole to the surviving parent or parents.
  • Parent’s children (brothers, sisters, or their children) and no spouse, children or parent — the whole to the parent’s children, divided equally as long as they are in the same generation.

Family members need to be aware that there is a statute of limitations for wrongful death cases in New York. Surviving family members have two years from the death to file a lawsuit. Therefore, it is important to speak with a New York wrongful death lawyer as soon as possible.

Wrongful death claims involve all types of fatal accidents from car accidents and truck accidents to medical malpractice and product liability cases.


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