Who Gets Wrongful Death Damages? | Dreyer Boyajian LLP

What Family Members Can Recover Damages in a Wrongful Death Case?

When you lose a loved one in a fatal accident, recovering damages is an important step toward moving on. Fatal accidents can leave family members facing significant financial losses, and they can result in various forms of non-financial loss as well.

However, New York law only entitles certain parties to recover damages for wrongful death. There are also strict rules regarding who can file a wrongful death lawsuit.

Only the Decedent’s Personal Representative Can File a Wrongful Death Lawsuit

In New York, only the decedent’s personal representative is able to file a claim for wrongful death. The law states:

“The personal representative, duly appointed in this state or any other jurisdiction, of a decedent who is survived by distributees may maintain an action to recover damages for a wrongful act, neglect or default which caused the decedent’s death.”

A personal representative is an individual who is appointed to administer a person’s final affairs after death. When someone prepares an estate plan, he or she will typically name a personal representative as part of the process. Most people appoint their spouse or an adult child, but there are very few restrictions on who a person may select as his or her personal representative.

When someone dies unexpectedly in an accident without an estate plan, a personal representative will need to be appointed through the New York courts. This is one of the first steps in the probate process.

Eligible family members can file a petition for probate in court. A judge will then appoint a personal representative based on the petition. The judge will usually appoint the individual proposed by the petitioning family member(s), but disputes among family members can potentially create challenges and delay the process.

In any case, once the decedent’s personal representative has been identified, it will be important for the representative to begin working on the family’s wrongful death case right away. While New York has a two-year statute of limitations for most wrongful death claims, there are some important steps that need to be taken immediately.

Only “Distributees” Are Eligible to Recover Damages for Wrongful Death

When a personal representative files a wrongful death lawsuit, he or she does so on behalf of the decedent’s estate. This means that if the wrongful death claim is successful, the damages will be awarded to the estate rather than the personal representative individually.

Damages awarded to the decedent’s estate are then paid to the decedent’s “distributees.” In the absence of a will, a decedent’s distributees will be identified in accordance with Section 4-1.1 of the Estates, Powers & Trusts portion of the New York Consolidated Laws.

Under this law, distributees will typically include one or more of the following:

  • The decedent’s spouse
  • The decedent’s children
  • The decedent’s grandchildren
  • The decedent’s surviving parents
  • The decedent’s surviving grandparents

Whether and to what extent individual family members are entitled to distribution of wrongful death damages under Section 4.1-1 depends on several different factors.

For example, if an accident victim has a spouse and no children, the spouse is entitled to 100 percent of the damages awarded. But, if an accident victim has a spouse and children, the spouse is entitled to $50,000 plus one half of the remaining damages, and the victim’s children are entitled to share the other remaining half.

The law addresses a variety of other scenarios as well. Family members will need to work with experienced legal counsel to ensure an appropriate distribution.

How Can I Make Sure My Loved One’s Personal Representative Files a Wrongful Death Lawsuit?

If you believe that you may be entitled to a portion of any wrongful death damages awarded as a result of your loved one’s fatal accident, you will want to speak with a lawyer about your legal rights. If you are not your loved one’s personal representative, a lawyer can help ensure that your loved one’s personal representative files a claim on behalf of the estate.

Speak with a New York Wrongful Death Lawyer

At Dreyer Boyajian LLP, our New York wrongful death lawyers have years of experience representing personal representatives, spouses, children, parents, and other family members. We can help you seek justice for your loved one’s death, and we encourage you to contact us for a free, no-obligation consultation.

For more than 30 years our law firm has advocated on behalf of those who have been seriously injured or lost loved ones due to the negligence of others. We pursue full compensation on behalf of victims and their families, recovering millions of dollars in verdicts and settlements.

Please contact Dreyer Boyajian LLP at (518) 463-7784 today for a free case review. Our wrongful death attorneys serve clients in Albany, Schenectady, Troy, Saratoga Springs, and other areas of New York.

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