New York Wrongful Death Lawyers

When negligence causes a death in New York, the law usually allows two separate claims, both brought by the estate’s personal representative.

The wrongful death claim (EPTL 5-4.1 and 5-4.3) compensates the family for its financial losses: the support and household services the person would have provided, the value of a parent’s guidance to children, and the medical and funeral expenses the family paid. These are measured as the losses of the surviving family members, not of the person who died.

The survival claim (EPTL 11-3.2) is the claim the person would have had if they had lived. It recovers for their own conscious pain and suffering between the injury and death, along with related losses. That recovery belongs to the estate.

The distinction matters. The two claims are proved differently, they can be subject to different deadlines, and the money from each is distributed under different rules.

A wrongful death case passes through the Surrogate’s Court twice: once at the beginning, to appoint the person who will bring the case, and again at the end, to approve the settlement and direct who receives it. Here is what each stage involves.

Stage one · Opening the estate

1. Choosing who will serve

If there is a will, the executor it names petitions to serve. If there is no will, the right to serve follows an order of priority set by statute: a surviving spouse first, then children, grandchildren, parents, and brothers and sisters (SCPA 1001). Some people cannot serve, including anyone under eighteen (SCPA 707). Families often agree among themselves who is best placed to act; that person need not be the one with the largest share of any recovery.

2. Gathering the documents

The petition is supported by a certified death certificate and, if there is one, the original will. In an administration, the court also requires a sworn account of the family tree that identifies every distributee, including children from earlier relationships and, where there are no children, parents or siblings. Missing or estranged relatives must still be identified; the court will not issue letters until everyone entitled to notice is accounted for.

3. Filing the petition

The petition states where the person lived, the date of death, the names and addresses of the distributees, and the estimated value of the estate. The wrongful death claim is itself listed as an asset of the estate, usually with its value stated as unknown. The filing fee is set by statute according to the size of the estate (SCPA 2402).

4. Consents, waivers, and citation

Family members with an equal or prior right to serve may sign a consent to the petitioner’s appointment or renounce their own right to serve. Anyone who does not sign is served with a citation: formal notice of a return date on which they may appear and object. Where a distributee is a minor or cannot protect their own interests, the court may appoint a guardian ad litem to represent them (SCPA 403).

5. Limits on authority and the bond

When the lawsuit is the main asset, the court typically issues limited letters (SCPA 702). The administrator may start and prosecute the action, but may not settle it or collect any recovery without a further order. Because no money can change hands without the court’s permission, the bond that would otherwise protect the estate is often dispensed with or kept nominal. If a will must be proved and probate will take time, the executor can ask for preliminary letters so the case can begin (SCPA 1412).

6. Letters issue

The court issues letters testamentary or letters of administration, and the clerk issues certificates of letters. Those certificates are what hospitals, nursing homes, insurers, and courts require before they will release records or recognize anyone as speaking for the person who died. The administrator can now retain counsel and commence the action.

Stage two · Approving the settlement

7. The compromise petition

No wrongful death case can be settled without court approval (EPTL 5-4.6). The administrator petitions either the Surrogate’s Court or the court where the lawsuit is pending. The petition describes how the death occurred, the litigation, the proposed settlement and why it is fair, the attorney’s fee and expenses, and every distributee. Family members again receive citations or sign waivers, so each has notice and an opportunity to be heard.

8. Allocating between the two claims

The court decides how much of the settlement is for the wrongful death claim and how much is for the survival claim. The allocation follows the evidence: what the person endured before death, and the family’s financial losses. It matters because the two portions are distributed differently and are subject to different liens.

9. Distribution to the family

The wrongful death portion is divided among the distributees according to each person’s financial loss, which often depends on age and dependence (EPTL 5-4.4). A spouse and young children typically receive more than independent adult children. The survival portion becomes part of the estate and passes under the will or by intestacy, after estate expenses and any applicable liens.

10. Protecting children and closing the estate

A minor’s share is generally deposited in a restricted account or structured arrangement, held until the child turns eighteen. Once funds are distributed, the administrator files the receipts or accounting the court requires, and the estate is closed.

For wills, probate, and estate administration generally, see probate and estate administration in New York.

A wrongful death settlement must be approved by a court, either the Surrogate’s Court or the court where the case is pending (EPTL 5-4.6). Our free family guide to Surrogate’s Court explains the estate side of the process in plain terms. The court reviews the amount, the attorney’s fee, and how the settlement is allocated between the wrongful death claim and the survival claim.

Wrongful death proceeds go to the distributees, generally in proportion to each person’s financial loss, as determined by the court (EPTL 5-4.4). They are not general estate assets and generally are not available to the decedent’s creditors.

Survival proceeds become part of the estate. They pass under the will or by intestacy and can be subject to estate debts and to Medicaid, Medicare and other liens.

Where a child is entitled to a share, the court directs how that money is protected, typically held until the child turns eighteen.

A family that has just lost someone should not have to sort out a court process on its own. We explain who should serve as administrator, prepare the Surrogate’s Court papers with the family, and coordinate the appointment so the investigation and the deadlines are not delayed.

At the same time we obtain the medical and facility records, preserve evidence, and retain the experts needed to prove what happened. When the case resolves, we handle the court approval and the distribution so the proceeds reach the people entitled to them.

For wills, estates and other Surrogate’s Court matters, see our estate planning practice.