Can An Estate Sue For Wrongful Death?

When a wrongful death occurs, the family of the person killed may file a claim. Because there may be many close family members who have suffered a loss, New York law specifies who can file the wrongful death lawsuit on behalf of the family.

It is important to note that not everyone can file a civil lawsuit seeking financial compensation for the wrongful death of another person. New York law allows the representative of the decedent’s estate, otherwise known as the executor or administrator, to pursue a wrongful death action on behalf of the surviving family members. The personal representative of the estate will file the wrongful death claim on behalf of the survivors who suffer damage from the decedent’s death. In New York, a family member cannot bring a wrongful death claim to court unless that family member is also the personal representative of the deceased person’s estate.

The Estate Powers and Trust Law (EPTL) of the New York State Constitution makes up New York’s wrongful death statute. N.Y. Est. Powers & Trusts Law § 4-1.1 lists the priority of survivors who are entitled to receive a share of a decedent’s estate when the deceased person dies without a Will. In New York, only people who are closely connected to a deceased person, such as a spouse, children, other direct relatives, may be considered hurt by the loss in such a way that they qualify for compensatory damages. N.Y. Estate Powers & Trusts Law § 5-4.4 empowers the legal representative of the estate to bring an action for wrongful death. This appointed representative may bring the wrongful death claim on behalf of the decedent’s survivors for “the wrongful act, neglect or default which caused the decedent’s death against a person who would have been liable to the decedent by reason of such wrongful conduct if death had not ensued.”

Damages awarded in wrongful death cases in New York depend on the specific facts of each case.

Damages recoverable in a wrongful death action include losses suffered by the surviving family, such as lost wages of the decedent that the family members were dependent on, funeral and burial expenses, lost benefits from a deceased wage earner, medical expenses, damages for the loss of parental guidance and damages for the loss of the deceased’s companionship and comfort. The representative can also assert a claim for pain and suffering, which permits compensation for the pain the decedent consciously suffered for the period of time from accident until death.

Unlike many other states, damages for pain and suffering can only be recovered on behalf of the person who died. New York will not allow surviving family members to recover compensation for any emotional injuries. However, there is an exception to this in special situations. A person may be able to recover damages for emotional distress for witnessing an immediate family member get into an accident. The concept is known as the “zone of danger” doctrine.

Even if the decedent was never employed, an estate may be compensated for a wrongful death. One example of a person who may have contributed in some other way to the family is a housewife. Her family contributions may be quantified as “pecuniary losses” and be listed as guidance, support and nurturing.

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

For over 40 years, David H. Perecman has distinguished himself as one of the leading personal injury lawyers in New York City, championing all types of personal injury cases including construction accidents, premises accidents, automobile accidents, and medical malpractice, along with employment discrimination, false arrest, and civil rights cases.