Wrongful Death Law in New York

Only the personal representative of the deceased person's estate may file the lawsuit. That is usually the executor named in a will, or an administrator appointed by the surrogate's court. The personal representative sues on behalf of the deceased person's heirs — called distributees under New York law — who are the ones who actually receive any money recovered.

In most cases the lawsuit must be started within two years of the date of death under Estates, Powers and Trusts Law § 5-4.1. If the defendant is a city, county, or other local government entity, a written notice of claim must also be served within 90 days of the appointment of the personal representative before any lawsuit can be filed. Missing either deadline typically ends the right to sue permanently.

New York law currently limits wrongful death recovery to pecuniary — meaning financial — damages. These include the financial support the deceased person would have provided to family members, medical and nursing care costs related to the fatal injury, and funeral expenses; interest on the amount recovered runs from the date of death. Punitive damages may be available in rare cases of especially reckless or intentional conduct. New York does not currently allow recovery for grief, sorrow, or loss of companionship.

Any money recovered goes exclusively to the deceased person's distributees — the people entitled to inherit under New York's intestacy (no-will) laws, such as a surviving spouse, children, and parents. If the deceased had a spouse and parents but no children, the parents are also treated as distributees for wrongful death purposes. A court divides the money based on each person's financial loss under Estates, Powers and Trusts Law § 5-4.4.

A wrongful death claim compensates the surviving heirs for their own financial losses caused by the death. A survival action, authorized by Estates, Powers and Trusts Law § 11-3.2, allows the estate to recover damages the deceased person could have sued for while alive — such as conscious pain and suffering before death. The two types of claims are often filed together by the personal representative but they cover different losses.

Wrongful death claims arising from medical or dental malpractice follow the same two-year filing period from the date of death under Estates, Powers and Trusts Law § 5-4.1. When calculating how much support the deceased would have provided, courts in those cases also consider the income taxes the deceased person would have owed, as required by Estates, Powers and Trusts Law § 5-4.3.

If a criminal case is brought against the same defendant for the same incident, the personal representative of the estate has at least one year from the end of the criminal case to file the wrongful death lawsuit, even if the standard two-year period has already expired. This extension is built into Estates, Powers and Trusts Law § 5-4.1.