Pursuant to the New York Estates Powers and Trust Law (EPTL), the distributees (next of kin) of the deceased loved one are entitled to receive compensation. Generally, that includes a spouse and children, or a spouse and parents if there are no children. If there is no spouse, no children and no parents, it will include other family members as well.

There are two types of money damages that family members can receive after the passing of a loved one because of someone else’s negligence. The first type of damage is for the financial losses suffered by the family members.  These losses may include claims for loss of support, voluntary assistance, and possible inheritance, as well as medical and funeral expenses incidental to death. Pecuniary loss, the legal term for financial loss, arising from the death of a wage earner may be calculated based on the lost loved one’s earning potential. These financial losses can also include loss of parental guidance and care, as well as moral and intellectual training that the person who died provided to the family. The second type of damage that may be recovered is for the pain suffered by your deceased family member before his/her death. This includes any pre-impact terror suffered by your family member and any suffering that occurred after the incident happened but before your family member passed away.

In New York, families are not entitled to be compensated for their grief, loss of affection, loss of society or loss of the romantic relationship. Many lawyers in New York, including George LaMarche, have been trying to change this law for years.

A child may be entitled to money for loss of financial support, inheritance, parental guidance and care as well as moral and intellectual training.

Family members are eligible to be reimbursed for funeral expenses and medical expenses incurred on behalf of their deceased loved one.

An estate representative is appointed by a Surrogate Court to handle the processing of estate matters and represent the estate of the loved one (decedent) in any legal claim or lawsuit.  When someone dies with a Last Will and Testament, the Will is submitted to Surrogate Court (known as “probating the will”) and the person named in the Will as the Executor (male) or Executrix (female) is appointed by the court.  When someone dies without a will, New York law sets forth a process to appoint a family member as the Administrator (male) or Administratrix (female) of the estate.  Generally, it is the surviving spouse, adult child or parent of the deceased family member who takes on this role.

The estate representative (Executor/Executrix/Administrator/Administratrix) is the person who retains the attorney and signs all paperwork associated with making a claim or commencing and resolving a lawsuit for the wrongful death of the loved one. The estate representative serves as the point of contact with the attorney and the decision maker as to whether the case will proceed to trial or resolve by way of a settlement.

It is not always necessary to file a lawsuit to receive a settlement for a wrongful death claim. Your wrongful death attorney may be able to negotiate a settlement with the insurance company of the negligent party. Any resolution of the legal claims related to your loved one must be submitted to the Judge in Surrogate Court for approval because that Judge is in the best position to determine how any proceeds will be distributed. Therefore, even if a lawsuit was not commenced, the settlement will still require approval by a Judge.

The New York Estates Powers and Trust Law governs who is entitled to receive the proceeds.  The Surrogate Court uses that law to determine who receives the proceeds and how much each family member receives based on criteria established by statute and case law.  When a settlement or verdict is reached, documents are submitted to the Surrogate Court by the wrongful death attorney and estate representative requesting permission to settle the claim and proposing a distribution of the proceeds.  The court may require certain family members be notified of the proposed settlement before approving the settlement, so that in fairness, all who may have an interest can be heard by the Court before any money is paid out of the estate.

The untimely death of a family member because of the negligence or wrongdoing of another person — a motorist, a doctor or a company is very difficult to accept. Sadly, the family who is left behind will suffer for years to come and the grieving process is often harder knowing your loved one’s death was preventable.

If you have lost a loved one due to someone else’s conduct or wrongdoing, you may be able to receive compensation and you should contact a wrongful death attorney who has experience in handling wrongful death cases.

Generally, a wrongful death lawsuit must be filed within two (2) years of the date of death of the loved one, with certain exceptions for claims against a municipality or the State of New York which require a claim to be filed within 90 days of the appointment of the estate representative.

How long a wrongful death case takes to resolve depends on many factors.  Before a claim or lawsuit can proceed, an estate representative must be appointed to represent the estate of the person who died and later, upon settlement of the claim or case, a court must approve the settlement. For cases against a doctor or a hospital, experts are required to participate in the review and prosecution of the case.  Cases that have complex issues involving how the accident occurred and multiple parties can also impact the progress and length of a case. On the other hand, more straight forward cases where fault or negligence is clear generally move forward more quickly.  If a case proceeds to trial, it is not unusual for even the most straight forward cases to take at least two years.

Following a settlement or verdict, the estate representative, through a wrongful death lawyer, must then submit documents to Surrogate Court to approve the settlement and distribution of the proceeds. That process can take several months to complete.

For the initial meeting with an attorney regarding a wrongful death claim, it is helpful to bring a certified copy of the death certificate, a copy of the paid funeral bill and the original Last Will and Testament of your deceased loved one (if they had a will). If an estate representative has already been appointed by a Surrogate Court, the wrongful death attorney will need a copy of the certificate of appointment. The attorney will also need the names, addresses and dates of birth of the spouse and children of the decedent (the loved one who died) or parents if there are no children. If no spouse, no children, or no parent is alive, this same information will be needed for any other distributees (family members).  Additionally, if the death was the result of a motor vehicle accident, a copy of the accident report is important.  Any other documents or information involving the circumstances of the death can also be helpful.

Wrongful death claims are based on the legal tort of negligence. Wrongful death negligence claims must prove four things to be successful: duty, breach, causation, and death.   The law is clear that a defendant(s) (the person(s) responsible) must breach a duty of reasonable care before an injured person can recover money damages.  Reasonable care means that degree of care that a reasonably prudent person would use under the same circumstances.  The clearest example of this is if a driver who is speeding strikes another person and causes that person to die. In this example the driver owed a duty to keep his vehicle under control, but when he did not, he breached his duty to other people on the roadway and caused the death of another person.

With regard to medical negligence claims, under New York Law, to prove a medical malpractice case there must be expert medical support for the action. The wrongful death medical malpractice lawyer must be able to prove that the doctor or hospital breached a duty of care to the patient by providing poor care, or failing to properly diagnose a condition and as a result of that caused the death of the patient.