If you have lost a family member to someone else’s negligence, the right to bring a wrongful death claim, what you can recover, and who can recover it are all governed by EPTL §5-4. Here is what the statute actually says.
EPTL §5-4.1 vests the right of action exclusively in the personal representative of the decedent’s estate — the executor named in the will, or the administrator appointed by the Surrogate’s Court if there is no will. Individual family members do not have standing to sue in their own names.
The statute of limitations is two years from the date of death — substantially shorter than the three-year PI statute under CPLR §214. The two-year clock is strict and runs even if the family does not yet have an appointed personal representative.
If the death was caused by a public entity (NYCTA, NYCHA, the City of New York, a hospital corporation), a 90-day Notice of Claim under GML §50-e is required in addition to the two-year statute.
§5-4.3 defines the scope of recoverable wrongful death damages: pecuniary injuries (loss of financial support, loss of services, loss of parental guidance and nurture, loss of inheritance), reasonable medical expenses incurred between the injury and the death, and reasonable funeral expenses.
Grief, emotional distress, and loss of society are NOT recoverable in the wrongful death action under §5-4.3. New York is among a minority of states that limit wrongful death damages to pecuniary loss. The decedent’s conscious pain and suffering before death — different from the family’s grief — is recoverable in a separate survival action under EPTL §11-3.2.
§5-4.4 directs the distribution of the wrongful death recovery to the decedent’s “distributees” — the persons who would inherit under intestacy if the decedent had died without a will. Even when there is a will, the wrongful death proceeds pass under intestacy, not under the will.
The distributees receive the recovery in proportion to the pecuniary injury each of them sustained, as determined by the court. A spouse and minor children typically receive the largest shares.
§5-4.5 permits a personal representative appointed in another state or country to bring a New York wrongful death action without obtaining ancillary letters here, provided the proper papers are filed. This matters for families whose decedent lived elsewhere but died in New York.
§5-4.6 requires that any settlement of a wrongful death claim be approved by the Surrogate’s Court (or by the Supreme Court if the action was filed there). The court reviews the proposed settlement for fairness, allocates the recovery between the wrongful death and survival components if both are alleged, and approves the distribution among distributees.
Only the personal representative of the decedent’s estate. Individual family members cannot sue in their own names.
Two years from the date of death under EPTL §5-4.1. If a public entity is involved, a 90-day Notice of Claim is also required under GML §50-e.
No. New York limits wrongful death damages to pecuniary loss under EPTL §5-4.3. The decedent’s own conscious pain and suffering before death is recoverable in a separate survival action under EPTL §11-3.2.
By EPTL §5-4.4. The recovery passes to distributees under intestacy, proportional to each distributee’s pecuniary loss as found by the court — not according to the decedent’s will.
Yes. EPTL §5-4.6 requires court approval of every wrongful death settlement.
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