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Who Can File a Claim for Wrongful Death in New York?

Published April 25, 2024 by David Wolff
Who Can File a Claim for Wrongful Death in New York?

Your loved one has perished in an untimely accident, and now you’re wondering whether you can seek compensation for your loss. The answer depends on whether you’re a personal representative of the deceased’s estate. Even if you’re not, it doesn’t mean you can’t recover damages. It simply means you can’t sue for wrongful death yourself.

Below, a New York wrongful death attorney discusses who can file a claim in our state.

Who May File a Wrongful Death Claim in New York?

Many states allow any of the deceased’s immediate family members to file a wrongful death claim, but New York isn’t one of them. In NY, only the personal representative (also called the executor) of the deceased’s estate can file a claim.

The personal representative is often a family member, such as the deceased’s spouse or adult child. They may also be a third party. If the deceased didn’t name an executor, the court will appoint a representative on their behalf.

What Do You Need To File a Wrongful Death Claim?

To qualify for a wrongful death claim, you must meet three requirements:

  • The negligence or act of a person/entity would have allowed the deceased to file an action to recover damages had they survived.
  • The deceased has surviving children, dependents, or distributees.
  • The deceased’s death led to monetary damages.

Damages Available for Wrongful Death

Damages that you can recover include:

  • Funeral and burial expenses
  • Loss of inheritance
  • The deceased’s final medical bills
  • The deceased’s lost wages
  • Loss of guidance, care, and nurturing to surviving children
  • Loss of services and support to the family

If you would like to sue for the deceased’s pain and suffering, note that you cannot do so with a wrongful death claim. That’s because a wrongful death claim is based on damages to surviving family members, while a pain and suffering claim is based on damages to the deceased.

When a person dies in New York, claims for pain and suffering transfer to their estate. The personal representative can then make a separate claim for pain and suffering. Often, pain and suffering claims and wrongful death claims are combined into a single suit for simplicity.

Who Can Claim Wrongful Death Benefits?

New York State distributes wrongful death benefits to surviving family members in order of priority. The court awards compensation like so:

  • The court gives the deceased’s spouse all awarded damages if there are no surviving children.
  • For a surviving spouse and children, the court gives the spouse $50,000 and half of the estate balance if applicable. The rest of the estate is divided equally among the children if they are of the same generation. If not, the court gives the largest share to the children from the generation closest to the deceased.
  • If the deceased had no spouse, the court equally divides the estate among their children.
  • If there are no children and no spouse, the court may award the estate to surviving parents.
  • If there are no surviving parents, the court can award the estate to surviving siblings.

Contact a New York Wrongful Death Lawyer

Losing a loved one is always terribly painful, especially when you didn’t expect their passing. If you are the deceased’s personal representative and would like guidance on how to proceed with a claim, reach out to a wrongful death attorney in NY from Cantor, Wolff, Nicastro & Hall LLC.

For a free consultation, contact us online or call (716) 848-2600.

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