Where negligence or other misconduct causes a death, survivors of the deceased may have a claim for wrongful death against the responsible parties. Wrongful death lawsuits can result in significant monetary awards. For instance, several wrongful death verdicts in excess of $2 million were entered in New York during 2020. However, it is important to understand that wrongful death actions differ from personal injury suits both in the type of damages available and how the award is allocated among survivors.

Wrongful death actions are governed by Article 5 of the New York Estates Powers and Trusts Law. A lawsuit must generally be commenced by the appointed estate representative within 2 years of the death. The statute of limitations can be extended if there is a pending criminal proceeding related to the death.

What Type of Damages Are Available?

Unlike personal injury lawsuits, damages for wrongful death are only available for “pecuniary injuries resulting from the decedent’s death to his distributees.” For instance, distributees may recover for their loss of support or services by the decedent and for expenses they paid for medical care and/or funeral expenses. They cannot obtain noneconomic damages such as pain and suffering, loss of consortium, etc. Interest from the date of the death and punitive damages can also be awarded.

Who Is Entitled to Damages in Wrongful Death Lawsuits?

Notably, the damages awarded in a wrongful death lawsuit are not considered the property of the decedent because, by definition, they didn’t exist while the decedent was alive. As a result, the decedent’s will is not relevant to determining who shares in the damage award. This is different from damages in a personal injury lawsuit, which are considered the property of the decedent and therefore, pass to heirs according to the will. In wrongful death cases, damages are available to the decedent’s distributees, which are those individuals who would inherit if the decedent had died without a will (intestate).

Generally, if a party is not a distributee, they have no right to any portion of the award, even if they could prove damages. For example, the decedent’s relationship partner, business partner or grandchildren whose parents are alive could not recover a portion of the damages regardless of whether they relied on the decedent for support or services. However, there is an exception by statute. If a decedent is survived by one or both parents and a spouse, but has no issue (children or descendants), the parents are considered distributees. In contrast, if the decedent had a spouse and issue, the parents could not recover as distributees.

How Are Damages Allocated?

There is no presumption that the proceeds from the lawsuit must be divided equally among the distributees. Instead, the judgment amount is allocated among the distributees in proportion to the injuries suffered by them, which must be determined after a court hearing.

Many New York courts apply what is known as the “Kaiser” standard to allocating damages among distributees. It states that distribution of the award should be based upon the amount of time distributees would have looked to the decedent for support. In the Kaiser case, the Court first determined the decedent’s life expectancy and the number of years until the distributees who were minors reached the age of majority. The decedent in the action had a life expectancy of 25 years and a child who was 1 year old with 20 years left to maturity. The Court next added the 25 and 20 years together to get to a total of 45 years, and then divided it proportionately among the decedent’s spouse and child. Since the spouse expected 25 years of remaining support, she received 55.8% of the damages. The child would have had 20 years of support and therefore, received 44.2% of the total award. While this is the type of calculation used in most cases, courts have discretion to make changes, such as where a distributee is disabled or other extenuating circumstances exist.

Wrongful death lawsuits can provide important compensation to family members. However, there are limits on the type of damages available and who can share in the proceeds. If you have questions about a possible lawsuit or what your rights are to any recovery, contact one of our attorneys for a consultation.