When a loved one dies in New York as the result of the negligent, reckless actions of another person or entity, a wrongful death lawsuit may be initiated to recover monetary damages. In most states, the family of the deceased has the right to file a claim for wrongful death.
However, family members do not necessarily have the right to file a claim for wrongful death in New York. Rather, a personal representative of the deceased must file the claim on their behalf. In theory, the personal representative acts as a substitute for the victim in filing a wrongful death lawsuit against the person that caused their death.
Simply put, a personal representative is someone who is put in charge of another individual’s financial affairs. This person can either be a legal representative or even a trusted friend of the estate owner. Although it was mentioned earlier that family members are not allowed to bring a wrongful death case, if a family member is also the personal representative of the deceased person’s estate, that is completely fine as well.
In addition to damages for any losses suffered by the deceased person’s estate, a New York wrongful death claim may seek damages for losses suffered by the deceased individual’s beneficiaries, heirs, or devisees. If damages are awarded, the personal representative is treated by the court as if he or she holds the damages award in trust for the surviving family members to whom the proceeds belong.
Wrongful death claims in New York merge the legal fields of personal injury law and probate law by making it mandatory for the claimant in the case to be a personal representative of the decedent’s estate. The claims are governed by The New York Estates, Powers and Trust Laws (EPTL), not the civil code that governs other personal injury matters. However, if there is no will or trust at the time of death, the court may appoint a personal representative to settle the deceased person’s financial affairs.
Remember, a wrongful death claim in New York needs to be filed within two years of the date of the deceased individual’s death—known as the “statute of limitations.” If more than two years have passed between the date of death and the date of filing, this rule bars wrong death claims from being filed.
However, the state does not “toll,” or stop, the statute of limitations from running if the personal representative of the deceased person is a child or is legally incapable of filing the claim. In such cases, the guardian of the child or incapable person is expected to file the wrongful death lawsuit instead.