Who brings the case
Under New York law, a wrongful death claim is brought by the personal representative of the person who died, meaning an executor named in a will or an administrator appointed by the Surrogate's Court. If no one has been appointed, that step comes first, and in some situations a limited appointment can be requested for the purpose of pursuing the claim. Any recovery is generally distributed among the family members the law recognizes, not simply to whoever filed. Other states use different arrangements, so if the death happened elsewhere or the family lives elsewhere, which state's law applies is an early question.
Two kinds of claims in one case
A case arising from a death often carries two related claims. One is for the losses the family suffered because of the death, such as the financial support and household services the person would have provided. The other, often called a survival claim, belongs to the estate and covers what the person went through before death, including conscious pain and suffering. They are usually brought together but are treated differently in how damages are measured and distributed. What New York allows families to recover for grief and lost companionship has been debated in the legislature in recent years, so we check current law when your case is reviewed.
Papers, deadlines, and approvals
The deadline for a wrongful death claim is shorter than many families expect, and claims against public bodies carry a much shorter notice requirement. Bring the death certificate, any will, police or incident reports, medical and hospital records if they are available, and information about the person's earnings and the relatives who depended on them. If a criminal case is pending against the person responsible, the civil claim can usually proceed on its own track. Settlements in these cases generally need approval from a court. Early on, we work out who should be appointed, which claims are available, and what needs to be filed first.
