Wrongful Death Claims and the Estate in New York

On this page

• Who can file a wrongful death lawsuit in New York
• Limited letters of administration (SCPA 702)
• Deadlines: EPTL 5-4.1, CPLR 210, and municipal claims
• What damages are recoverable
• Wrongful death and conscious pain and suffering
• Court approval of a settlement (EPTL 5-4.6)
• How a settlement is divided (EPTL 5-4.4)
• Liens, creditors, and Medicaid
• Timeline from death to distribution
• The Grieving Families Act
• Common questions

Who can file a wrongful death lawsuit in New York

Under EPTL 5-4.1, only the decedent's personal representative may bring a wrongful death action. The decedent must also be survived by distributees. A spouse, child, or parent has no standing to sue on their own, even if they are the only person who suffered a loss. A suit started by a family member who has not been appointed is open to dismissal.

The personal representative is one of the following:

• Executor: If the decedent left a will, the named executor receives letters testamentary once the will is admitted to probate. If probate will take time, the executor can ask for preliminary letters.
• Administrator: If there is no will, the Surrogate's Court issues letters of administration, usually to the closest family member in the priority order of SCPA 1001. Our page on administering an estate without a will explains that order.
• Administrator c.t.a.: If there is a will but the named executor has died, declines, or is unqualified, the court can appoint an administrator with the will annexed.
• Out-of-state representative: EPTL 5-4.1 allows a representative appointed in another jurisdiction to sue. Where New York assets also need to be administered, ancillary letters may be needed as well.

The representative sues as a fiduciary for the distributees. The representative does not personally own the recovery and owes duties to every distributee, including those they may be in conflict with.

If the named executor refuses to act

An executor who will not pursue a viable claim can renounce, or an interested person can petition the Surrogate's Court to compel the executor to qualify or to issue letters to someone else. An executor who already holds letters and sits on a claim while the deadline approaches may be subject to a removal proceeding, or the court may appoint a co-fiduciary.

If no one will serve

Sometimes the family is estranged, the distributees live abroad, or no one wants the responsibility. In the five New York City counties, the Public Administrator can be appointed. Elsewhere in the state, the county's chief fiscal officer or another eligible person, including a creditor, may petition. Waiting for someone to step forward does not pause the statute of limitations, so the appointment question needs to be settled early.

Limited letters of administration (SCPA 702)

Many families do not need full administration of the estate. A decedent may have owned little in their own name, or everything may have passed by joint ownership or beneficiary designation. In those cases the Surrogate's Court can issue limited letters under SCPA 702 for the purpose of starting and pursuing the wrongful death action.

Limited letters usually carry two restrictions. The administrator may not compromise the claim without court approval, and may not collect any recovery without a further court order. They are often faster to obtain than full letters, and they let suit be filed or a notice of claim be served while the broader estate questions are worked out.

The petition still requires the court to know who the distributees are. Expect to provide a death certificate, a family tree, and proof of relationship. For distant or unknown relatives, an affidavit of heirship may be needed. Distributees with equal or higher priority must be served with process or sign waivers. A missing or uncooperative relative can delay the appointment, which is one reason to start early.

Deadlines: EPTL 5-4.1, CPLR 210, and claims against municipalities

The two-year wrongful death period

A wrongful death action must be started within two years of the date of death (EPTL 5-4.1). The two years run whether or not a representative has been appointed. If a criminal action is brought against the same defendant over the same event, the statute gives the representative at least one year from the end of the criminal case to sue.

The decedent must have been able to sue on the date of death

EPTL 5-4.1 allows suit only against a defendant who "would have been liable to the decedent" had death not occurred. If the decedent's own claim was already time-barred on the date of death, the wrongful death claim fails too, even if death came well within two years of filing. This mostly comes up when a long illness follows the injury.

The survival claim and CPLR 210

The decedent's own claim for injuries, including conscious pain and suffering, survives death under EPTL 11-3.2. It keeps the decedent's original limitations period, usually three years for negligence. If the decedent died before that period ran out, CPLR 210(a) gives the representative at least one year after death to sue. The two claims can therefore have different deadlines.

Medical malpractice timing

Medical malpractice cases show how the rule above works in practice. The decedent's own malpractice claim generally had to be brought within two years and six months of the act or omission, or of the end of continuous treatment for the same condition (CPLR 214-a). For a failure to diagnose cancer or a malignant tumor, the 2018 amendment known as Lavern's Law runs that period from discovery, subject to a seven-year outer limit. If the malpractice claim had already expired before death, there is no wrongful death claim. If it was still alive, the wrongful death action has its own two years from death. Gaps in treatment, changes of provider, and records from several hospitals all affect the analysis.

Claims against a city, county, town, or other public entity

When the defendant is a municipality, two separate deadlines apply under the General Municipal Law:

• Notice of claim (GML 50-e): For wrongful death, the 90 days to serve a notice of claim run from the appointment of the estate's representative, not from the date of death. The notice must be served by the appointed representative.
• Lawsuit (GML 50-i): A wrongful death action against a municipality must be started within two years of death. The survival claim follows the shorter municipal period of one year and 90 days from the event.

A court can permit late service of a notice of claim, but it cannot extend the time past the limitations period. Some public authorities and public hospital systems have their own notice statutes. Claims against the State of New York are brought in the Court of Claims under Court of Claims Act § 10, which also ties its 90-day period for wrongful death to the appointment of a representative.

Because the municipal notice clock starts at appointment, families sometimes delay seeking letters. That shortens the time the 50-i deadline leaves for everything else. Obtaining letters promptly protects both deadlines.

What damages are recoverable: New York's pecuniary-loss rule

EPTL 5-4.3 limits wrongful death damages to "fair and just compensation for the pecuniary injuries" suffered by the distributees. New York courts have read "pecuniary" to mean losses that can be measured in money. Recoverable items include:

• Loss of financial support the decedent would have provided
• Loss of household services, such as childcare, home maintenance, and care of a family member
• Loss of parental guidance for the decedent's children, which courts treat as having economic value
• Loss of the inheritance the distributees would likely have received had the decedent lived a normal life span
• Reasonable medical, nursing, and hospital expenses for the fatal injury
• Reasonable funeral expenses paid by the distributees or owed by the estate
• Interest from the date of death

The statute also allows punitive damages where the decedent could have recovered them had they lived.

Grief, sorrow, and loss of companionship are not recoverable in a New York wrongful death action. This surprises many families, and it has large practical effects. The death of a retiree, an adult child with no dependents, or a young child can produce a modest pecuniary-loss award even when the loss to the family is enormous. That gap is what the Grieving Families Act, discussed below, was written to address.

Wrongful death and conscious pain and suffering are separate claims

A complaint arising from a death usually pleads two causes of action. They have different owners and different rules.

• Wrongful death (EPTL 5-4.1): Compensates the distributees for their pecuniary loss. The money is not an estate asset. It passes outside the will to the distributees under EPTL 5-4.4 and is generally not reachable by the decedent's creditors.
• Survival claim (EPTL 11-3.2): The decedent's own claim for the injuries, including conscious pain and suffering between injury and death, and for pre-death medical expenses and lost earnings. The recovery is an estate asset. It passes under the will, or by intestacy if there is no will, and it is available to the estate's creditors.

Conscious pain and suffering requires proof that the decedent was aware for some period after the injury. Medical records, EMS reports, and witness accounts matter here. Instantaneous death generally produces no recovery on this claim.

The split matters most at settlement. A defendant usually offers one lump sum, and the court must approve how it is divided between the two claims. The allocation decides who receives the money and which creditors and lienholders can reach it. If a will leaves the estate to someone other than the distributees, such as a sibling, a charity, or a new partner, the allocation can shift money between family members. Courts review these allocations against the evidence and do not simply accept whatever split the parties prefer.

Court approval of a wrongful death settlement (EPTL 5-4.6)

A personal representative cannot settle a wrongful death claim on their own authority. EPTL 5-4.6 requires a compromise order. The application may be made to the court where the action is pending, usually Supreme Court, or to the Surrogate's Court that issued letters. If the claim settles before suit is filed, the application goes to the Surrogate's Court.

A compromise petition typically includes:

• The facts of the occurrence and the theory of liability
• The available insurance coverage and the defendant's ability to pay
• An attorney's affirmation explaining why the settlement is reasonable
• The proposed allocation between wrongful death and conscious pain and suffering
• The proposed attorney's fee and disbursements
• Known liens and how they will be resolved
• A list of distributees, their relationship to the decedent, and proof of service or consent

When the compromise is approved in Supreme Court, that court may also fix fees and decide distribution, or it may leave those issues to the Surrogate's Court.

How attorney fees are approved

Fees in a wrongful death case are subject to court review. Appellate Division rules govern contingency fees in personal injury and wrongful death matters, and medical malpractice fees are capped on a sliding scale by Judiciary Law § 474-a. In Surrogate's Court, the judge fixes the fee as part of the compromise or in a separate proceeding under SCPA 2110, considering the work performed, the result, and the fee agreement. A signed retainer does not guarantee the court will approve the fee as written. Fees for the estate work, such as obtaining letters and handling the compromise and distribution, are also reviewed.

How a wrongful death settlement is divided in New York (EPTL 5-4.4)

Families often expect the money to follow the will, or to be split equally. Neither is correct. Under EPTL 5-4.4, net wrongful death proceeds go only to the decedent's distributees, meaning the people who would inherit under the intestacy rules of EPTL 4-1.1. They are shared in proportion to the pecuniary loss each one suffered.

Some practical consequences:

• A will has no effect on who receives wrongful death proceeds. A beneficiary under the will who is not a distributee receives nothing from this part of the recovery.
• Only distributees in the closest class share. If the decedent left a spouse and children, the decedent's parents are not distributees and do not share, even if they relied on the decedent.
• A distributee who suffered no pecuniary loss may receive little or nothing. An adult child who was financially independent may receive less than a minor child who depended on the decedent.
• When a spouse and children share, Surrogate's Courts often start from a formula based on the life expectancy of the decedent, the years until each child reaches majority, and the spouse's dependency, sometimes called the Kaiser formula. The court can depart from it when the evidence supports a different split.
• A minor's share is usually paid to a guardian of the property or held in a restricted account until the child turns 18.

Disputes among distributees

Distribution hearings are where family conflict tends to come out. Common issues include:

• A parent who abandoned the child: Under EPTL 4-1.4, a parent who failed or refused to provide for, or abandoned, a child while the child was under 21 can be disqualified from sharing in the child's estate and in wrongful death proceeds. The claim must be proven, usually at a hearing, and the burden is on the person raising it.
• Separated spouses: A spouse who abandoned the decedent or failed to provide support may be disqualified under EPTL 5-1.2.
• Children from different relationships: Each child's share depends on that child's own dependency and age, which can lead to unequal amounts.
• Non-marital children: Their status as distributees may depend on proof of paternity under EPTL 4-1.2.

These disputes are decided in the same way as other inheritance disputes: with evidence, testimony, and sometimes a guardian ad litem for minors or incapacitated distributees. They can delay distribution after the case has settled.

Liens, creditors, and Medicaid

Before any distributee is paid, the court will want to see that valid claims against the recovery are resolved. The usual sources are:

• Medicaid: If Medicaid paid for treatment of the fatal injury, it may assert a lien for those payments. Federal law limits that lien to the part of the recovery that represents medical expenses. Separately, for Medicaid recipients 55 and older, the state's estate recovery program can claim against estate assets, and that can include the survival recovery.
• Medicare: Medicare must be reimbursed for conditional payments related to the injury. A final demand letter is usually obtained before distribution.
• Hospitals and health plans: Hospitals may file liens under Lien Law § 189, and private or employer health plans may claim reimbursement under their plan terms.
• Workers' compensation: If the death was work-related, the compensation carrier may have a lien on a third-party recovery under Workers' Compensation Law § 29.
• Estate creditors: The decedent's general creditors can be paid from the survival recovery, because it is an estate asset, but not from wrongful death proceeds. Funeral and medical expenses recovered as wrongful death damages are reimbursed to whoever paid them.

Lien amounts can often be negotiated down, particularly where the recovery is limited by insurance or the claim is weak on liability. The allocation between the two claims affects which liens attach, so lien resolution and the compromise petition are usually prepared together.

On taxes, survival recoveries are generally included in the decedent's gross estate for estate tax purposes. Wrongful death proceeds generally are not, because they belong to the distributees. Have the estate's accountant or tax counsel confirm the treatment for your estate.

Timeline from death to distribution

Every case moves at its own pace, but most follow this sequence. For the estate administration part, our sample NYC probate timeline gives more detail.

1. Preserve evidence and records: Obtain the death certificate, police or incident reports, medical and EMS records, and the names of witnesses. Calendar the two-year deadline from the date of death and any shorter deadlines.
2. Identify the distributees: Build the family tree. Find out whether there is a will and who is named as executor.
3. Petition for letters: File for probate, letters of administration, or limited letters in the Surrogate's Court of the county where the decedent lived. Serve or obtain waivers from distributees with priority.
4. Serve any notice of claim: If a public entity may be responsible, serve the notice of claim within 90 days of appointment.
5. Commence the action: File suit for wrongful death and conscious pain and suffering before the earliest applicable deadline.
6. Litigate or negotiate: Discovery, depositions, expert review, and settlement talks or trial.
7. Seek a compromise order: Petition for approval of the settlement, the allocation, fees, and the lien plan.
8. Resolve liens: Obtain final lien amounts and pay or escrow them.
9. Distribute: The court fixes each distributee's share. Minors' shares go to restricted accounts or guardians. The survival portion is administered through the estate.
10. Account and close: The fiduciary reports what was received and paid. In some cases a formal accounting is needed before the fiduciary is discharged.

The Grieving Families Act

The Grieving Families Act would have changed New York's wrongful death law in several ways. It would have allowed recovery for grief and loss of companionship, widened the group of family members who could recover beyond distributees, and lengthened the limitations period from two years to three and a half years.

The Legislature passed versions of the bill several times. Governor Hochul vetoed it in January 2023, December 2023, and December 2024, citing concerns about insurance costs and the bill's scope. New versions have continued to be introduced. Unless and until a version becomes law, the pecuniary-loss rule and the two-year limitation described on this page govern New York wrongful death claims. Any change would likely apply only to deaths after a stated effective date, so do not delay a filing in the hope that the law will change.

Common questions

Can a parent or spouse file a wrongful death lawsuit without going to Surrogate's Court?

No. The action must be brought by a personal representative appointed by a court. In most New York cases that means letters issued by the Surrogate's Court of the county where the decedent lived.

Does the will control who gets the wrongful death settlement?

No. The will controls the survival recovery and other estate assets. Wrongful death proceeds go to distributees under EPTL 5-4.4, in proportion to their pecuniary loss.

Can the person who serves as administrator keep more of the money?

No. The administrator is a fiduciary. They may receive statutory commissions on estate assets, but their share of the wrongful death proceeds depends only on their own pecuniary loss as a distributee.

What if the decedent had no spouse, children, or parents?

A wrongful death claim requires surviving distributees, which can include siblings, nieces and nephews, and more distant relatives. Their pecuniary loss is often limited, which affects the value of the claim. The survival claim belongs to the estate regardless.

How long does it take to get letters?

It varies by county and by how easy the family is to locate and serve. Limited letters on consent can move faster than a contested appointment. The Brooklyn, Queens, and Manhattan Surrogate's Courts each have their own practices, discussed on our Brooklyn estate and Brooklyn probate pages.

How the Law Offices of Albert Goodwin can help

Our practice focuses on estates and Surrogate's Court work in New York City. Every wrongful death recovery passes through that system. We can review the facts and deadlines, petition for full or limited letters, and handle contested appointments and executor refusals. We also prepare compromise petitions, resolve liens, and represent distributees in allocation and disqualification disputes. Where a separate trial lawyer is handling the injury case, we can work with that lawyer on the estate side so that settlement funds can be approved and distributed without delay.

For an overview of how estates are opened and run, see our estate administration page. We have offices in New York City, Brooklyn, and Queens. Call 212-233-1233 or email [email protected].

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