If you recently lost a loved one due to the carelessness, recklessness, negligence or wrongful actions of another person or entity, you may have a wrongful death claim. Wrongful death, as defined by New York law, is a death “by wrongful act, neglect or default,” and of the kind that, should the deceased person have survived, would have warranted a personal injury lawsuit.
Because victims of wrongful death cannot bring lawsuits for themselves, though, New York allows other individuals to file on their behalf. However, not just anyone can file a wrongful death claim. If you hope to recover compensation for your loss, it is important to understand who can file the lawsuit and, just as importantly, who may recover compensation. An experienced wrongful death lawyer in New York can help you explore the ins and outs of this unique type of claim and advise you on what steps your family must take to pursue justice.
Who Can File a Wrongful Death Claim in New York?
New York law allows just one person to file a wrongful death claim on a person’s behalf, and that is the personal representative, or “executor,” of the deceased’s estate. Unlike many other states, New York does not allow family members to file for wrongful death benefits unless a person happens also to be an estate representative.
It is not uncommon for persons to die unexpectedly and without a will in place. Without a will, trust or some other estate planning document in place, a person does not have an estate representative. In this case, a family member may petition the courts to appoint him or her as the representative.
Who Is Eligible for Compensation From a Wrongful Death Claim in New York?
Though just one person can file a wrongful death claim in New York, several individuals may benefit from an award. Whether a person may receive compensation depends on his or her relationship to the deceased as well as the relationship status of other survivors. The New York State Senate details the order of distribution of compensation after deducting all reasonable funeral expenses, debts, administration expenses and taxes:
- If a spouse and one issue (or child) survives the deceased, $50,000 and one half of the award will go to the spouse, and the remaining balance to the child.
- If just a spouse survives the deceased, the entirety of the award will go to the spouse.
- If the deceased’s only survivors are children, the courts will award the entirety of the settlement to the children.
- If the decreased does not have any surviving children or a spouse, the courts will disburse the award to surviving parents.
- If the decreased does not have any surviving children, a spouse or surviving parents, the courts will issue the award or settlement to surviving siblings.
- Finally, if the deceased does not have any surviving children, a spouse, surviving parents or surviving siblings, surviving grandparents may collect compensation.
State law specifies other, further removed family members who may recover compensation via a wrongful death claim if closer descendants do not exist. These include great-grandparents, half-blooded relatives and adopted children. Half-blooded relatives have the same rights as whole-blooded relatives of the same connection. Adopted children have the same rights as biological children as well.
What Damages Are Available in a Wrongful Death Claim?
Though New York law defines a wrongful death as an accident that, had the victim survived, would have warranted a personal injury claim, the damages available via this type of suit differ slightly than those the courts award in a personal injury action. For instance, the purpose of a personal injury lawsuit is to compensate accident victims for the losses they, personally, endured because of their injuries. Such losses may include but are not limited to medical expenses, lost wages, pain and suffering, and loss of enjoyment of life. The purpose of a wrongful death award, on the other hand, is to compensate bereaved family members for the losses the unexpected death caused. Some such losses are as follows:
- Reasonable medical expenses the decreased accrued before his or her death and because of the injury or illness the defendant caused
- Reasonable burial and funeral expenses
- Financial support the deceased would have contributed to the family had he or she lived
- The value of home services — such as mowing the lawn, home repairs, and child care — the deceased would have provided the family
- The survivor’s lost inheritance
- The value for surviving children of parental nurturing, care and guidance
- Pain and suffering the deceased endured because of the final illness or injury and before he or she died
- Interest on the award, calculated from the date of death
If the courts award non-economic damages — such as the value of parental care or pain and suffering — they may not allocate the same amount to all survivors. For instance, the law may entitle a 12-year-old child to substantially more compensation for the loss of parental care than an 18-year-old. Likewise, the courts may award the entire portion for loss of companionship to a surviving spouse.
How Long Do You Have To File a Wrongful Death Claim in NY?
Wrongful death actions, like nearly all legal actions, come with a myriad of requirements claimants must meet. In addition to the personal representative requirement, one such requirement is the deadline requirement.
To file a successful wrongful death claim, you or the personal representative of your loved one’s estate must file the claim within the “statute of limitations.” The statute of limitations is the timeframe between the date of the triggering incident (in this case, death) and the last day by which you may file. In the case of wrongful death in Manhattan, New York, you have two years from the date of death to file. However, the state does maintain a couple of exceptions.
The first exception is if the wrongful death is the result of medical malpractice. In this case, you have two and a half years from the date your loved one died to file your claim.
The second exception is if the person who caused the injurious event has a criminal case pending against him or her. The criminal case must involve the event that caused the death. In such a case, you have one year from the criminal case’s resolution to file the claim. This is assuming, of course, that the criminal case takes more than two years to resolve.
How Long Does a Wrongful Death Claim Take?
A wrongful death claim can take years to resolve, or just a few months. The length of time between filing and resolution depends on several factors that are unique to each case. Such factors include the amount of evidence each party presents, whether the case settles or goes to trial, and how much negotiation is involved. It also depends on the court’s availability to hear a case.
Do You Need a Wrongful Death Lawyer?
Though the law does not require you to have a lawyer represent your case, it is always a good idea to retain one. A skilled lawyer is familiar with everything from filing requirements to court procedures and can take all the necessary steps to keep your case moving in the right direction. For help getting the legal processes started at this challenging time in your life, contact Cellino Law to schedule your free initial consultation today.