Survivors in New York Wrongful Death Action

If you are coping with the unexpected loss of a family member, it certainly seems like the law should make it easy to recover your losses. Your loved one died as a result of someone else’s negligence, and New York law makes clear that negligent parties are liable for the consequences of their mistakes. So, why is understanding your legal rights in a case of wrongful death so difficult?

Part of what makes wrongful death claims so complex is the fact that there are special rules around who can file a wrongful death lawsuit. Not only that, but there are actually two types of lawsuits that families can file in order to recover financial compensation, and there are different rules for each.

Two Types of Claims Arising Out of Fatal Accidents: Wrongful Death and Survival Actions

Most of the time, when you hear about compensation claims arising out of fatal accidents, you will hear these referred to as claims for “wrongful death.” But, while New York has a wrongful death statute, it also has a law that allows families to recover additional compensation through what is known as a “survival action.”

What Is a Claim for Wrongful Death?

In New York, a claim for wrongful death is a claim to recover the financial losses family members incur as a result of their loved one’s untimely death. This includes compensation for funeral, burial, and cremation expenses, and loss of the decedent’s income. In certain circumstances, additional compensation may be available for loss of companionship and loss of parental care.

Who Can File a Claim for Wrongful Death?

Under Section 5-4.1 of the Estates, Powers & Trusts Article of the New York Consolidated Laws, the only person who can file a wrongful death claim is the decedent’s personal representative. A personal representative is the individual who is responsible for administering a person’s final affairs; if your loved one left a will, the will most likely designates a “PR”. If your loved one did not leave a will, if the will is invalid or incomplete, or if the designated personal representative is unable or unavailable to serve in the role, then a personal representative will need to be appointed through New York’s probate court system.

However, while a personal representative is the only one who can file a wrongful death claim, the personal representative is not the only one who is entitled to financial compensation. In fact, depending on the personal representative’s familial relationship to the decedent (if any), the personal representative may or may not be entitled to a share of any settlement or verdict obtained. The personal representative files a wrongful death claim on behalf of eligible family members, and any compensation recovered must be distributed to those family members pursuant to New York law.

What Is a Survival Action?

A survival action is a claim to recover the damages that the decedent could have recovered through a personal injury lawsuit had he or she survived the accident. Principally, this includes the decedent’s medical expenses incurred as a result of the accident, as well as the pain, suffering, and emotional trauma he or she experienced prior to death. In cases where the victim dies upon impact, there generally will not be a survival action to pursue.

Who Can File a Survival Action?

Similar to a wrongful death claim, in New York, a survival action may only be filed by the decedent’s personal representative. But, unlike a wrongful death claim, damages awarded in a survival action are not distributed directly to eligible family members. Instead, any compensation recovered becomes a part of the decedent’s estate, and it is distributed according to the decedent’s estate plan (or New York’s intestate succession laws if there isn’t an estate plan to follow).

As a Spouse, Child, or Parent, What Are My Next Steps?

Given these rules, as a spouse, child, or parent who has lost a family member in a fatal accident in New York, what are your next steps?

In order to pursue a wrongful death claim and/or a survival action, you will need to identify your loved one’s personal representative. This means reviewing your loved one’s will (if one exists) and, typically, initiating the probate process. However, the probate process takes time, and it is important that you not wait to speak with an attorney about your family’s legal rights. So, regardless of whether you know who is (or who will be) your loved one’s personal representative, we would encourage you to schedule a free initial consultation so that our lawyers can begin gathering evidence right away.

Schedule a Free Initial Consultation in New York

If you would like to speak with an attorney about filing a wrongful death claim in New York, please contact us online or call 914-288-9191 to arrange a time that is convenient for you.


by Lever & Ecker, PLLC
Last updated on - Originally published on