Who Can File a Wrongful Death Lawsuit in New York?

New York’s wrongful death laws can be confusing.  In most cases, the family members cannot simply go to court and sue for the damages they deserve without following certain rules and restrictions first, especially when it comes to who is authorized to file a lawsuit.

Under New York law, only the” personal representative” of the deceased can file a wrongful death lawsuit.  This individual might be appointed in the deceased’s will or by law.  If the personal representative refuses to file the lawsuit, the family can elect a new representative to take care of the lawsuit instead.  Ultimately, the victim’s family benefits from this lawsuit, even though they aren’t the ones to file it directly in many cases.

For help with a wrongful death lawsuit, call our Westchester wrongful death attorneys today.  At The Martello Law Firm, we offer free case evaluations.  Call (914) 685-6950 today.

Filing a Wrongful Death Lawsuit with a Personal Representative in NY

Under New York law, wrongful death lawsuits are not filed directly by family members.  Instead, the person who administers the victim’s estate is the one who files the case.  In other states or outside of the official legal definitions, you might refer to this person as the estate’s administrator or executor, but New York law calls them the “personal representative.”

When someone dies with a will, their will states who the personal representative will be.  Often, older adults place an adult child or a sibling in charge of their estate, but many people will simply appoint their lawyer.  Sometimes a spouse or other loved one will be appointed personal representative, but there is no guarantee that it is a family member at all.

The personal representative of the deceased essentially stands in for them and divvies up the victim’s estate according to the terms of their will (or the terms of E.P.T. Law § 4-1.1 if they died without a will).  In addition, this individual is empowered under § 5-4.1 to file a survival action for the benefit of the surviving family and under § 11-3.2 to file a survival action for the benefit of the estate.

It is important to have a New York wrongful death lawyer represent you throughout this process.  The personal representative may or may not be a lawyer, and if they are not, then you and your family should have a lawyer on your side to help represent and protect your interests.  If the personal representative is a lawyer, it is important to realize that they do not necessarily work for you (they work for the estate).  You should likely have your own Yonkers wrongful death lawyers to help you get the benefits you deserve rather than trusting the personal representative to have your best interests in mind.

Can the Family Get Around the Personal Representative Requirement?

Generally speaking, the personal representative is going to be a lawyer or a family member who wants to see the family get the damages they deserve.  However, legal issues can often be messy in the wake of someone’s death, and personal representatives are not always willing or able to file the lawsuit.  In some cases, your family might be able to get around the personal representative requirement by getting a new representative.

Under E.P.T. Law § 5-4.1(1), distributees (i.e., the family who can benefit in a wrongful death lawsuit) are entitled to have a new personal representative appointed if the executor of the will refuses to bring a wrongful death action.  This is great news if the court appoints someone the family disagrees with or if there are separate factions of the family that want different outcomes.

Talk to our White Plains personal injury lawyers about what needs to be proven before you can have a new personal representative appointed and what powers that representative will have.  It is also important to consider who your new representative will be and how you will work with them to file the case and get the damages your family needs after a loved one’s wrongful death.

What Family Members Can Benefit from a Wrongful Death Lawsuit in New York?

If the personal representative files the wrongful death case instead of the family, then what mechanisms are in place to make sure that the family benefits?  And what family members are entitled to get damages from a wrongful death lawsuit in the first place?

Generally speaking, there are two claims that benefit two different parties or groups:

  • The survival action pays damages back into the estate for end-of-life medical care, pre-death lost wages, funeral expenses paid by the estate, and the victim’s pre-death pain and suffering.
  • The wrongful death action pays damages to the surviving family for their own payments towards medical care or funeral expenses, plus any other economic harms the family faces.

When damages are paid into the estate, the family will benefit under the victim’s will in whatever share they are entitled to in that document.  For example, the father of minor children might have left all of his estate to his wife, with the assumption that she would use it for the benefit of their children.  In that case, the victim’s parents and children would receive none of the estate directly.  Alternatively, a father of adult children might have left half of the estate to his wife and the rest to be divided evenly between his children.  A will can also grant shares to non-family, such as a dating partner or friend.

If the victim dies without a will, then E.P.T. Law § 4-1.1 lays out the default inheritance rules.

Those distribution rules, with some modification under § 5-4.4 and § 5-4.5, are also used to distribute the damages from the wrongful death lawsuit.  Damages paid for medical expenses and funeral bills can be paid in full to whichever family member paid them, but other damages are distributed in order of priority.  Talk to our New Rochelle personal injury lawyers about whether you can qualify for damages based on your relationship with the deceased.

Call Our New York Wrongful Death Lawyers for Help with a Wrongful Death Lawsuit

If you lost a loved one in an accident, call The Martello Law Firm at (914) 685-6950 for a free case review with our Mount Vernon personal injury lawyers.

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