Filing a Wrongful Death Claim in New York

When it comes to unnatural deaths, they can be intentional or they can be accidental. When a death is intentional, the at-fault party will likely face criminal charges. In contrast, an accidental death would not normally lead to criminal charges, but it can lead to a civil lawsuit for wrongful death. Drunk driving accidents are an exception. Often, these can lead to criminal charges and a personal injury lawsuit.

Each state has enacted wrongful death laws and New York is no exception. Under the New York Estates, Powers, and Trusts Code Part 4, the following must be established to have grounds for a wrongful death claim:

• A death occurred,
• The death was caused by the defendant’s wrongful conduct,
• If the death had not occurred, the decedent would have had a cause of action,
• One or more surviving family members suffered a loss due to the untimely death, and
• There are damages the decedent’s estate can recover.

Who Can File a Wrongful Death Claim?

Unlike many other states, surviving spouses and children cannot file their own wrongful death claims in New York. Instead, wrongful death claims must be filed by the personal representative or executor of the decedent’s estate. A close family member can only bring a wrongful death action if they are also the personal representative of the decedent’s estate.

However, the personal representative of the estate has every right to seek damages on behalf of the decedent’s surviving family members, heirs, or beneficiaries. If damages are awarded, the personal representative is responsible for disbursing the damages award to the rightful heirs of the decedent’s estate.

Common damages in a wrongful death claim:

• Loss of inheritance.
• Lost income from the deceased.
• Loss of parental guidance, nurturing and care.
• Pain and suffering experienced by the deceased.
• Medical and healthcare expenses belonging to the decedent prior to their death.
• Funeral and burial costs.

In New York, a wrongful death claim must be filed within two years of the decedent’s date of death. This is known as the “statute of limitations” or the deadline for filing a wrongful death claim. If a claim is not filed within two years, the window closes and a claim can no longer be filed.