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Wrongful death actions affect New York probate when the person who died had a will?

Once the Judge in New York Surrogate’s Court is convinced of the validity of a will, the executor named in the will is then appointed to distribute the estate, by carrying out the wishes of the person who died. When wrongful death is involved, the probate process may include slightly different variables for the distribution of an estate.

Wrongful death.

In the State of New York, a decedent’s spouse, parents, children, or personal legal representative of the estate are allowed to file a wrongful death legal claim, within two years from the date of the death caused by another. A deviation from this timeline may occur if criminal action has ensued with respect to the claim that caused the wrongful death allowing the personal representative one year from the termination of the criminal action.

Estate Powers and Trust Law (EPTL), Article 5, Part 4, EPTL 213-217 provides for the personal representative of an estate to hold the right to sue for pecuniary loss on behalf of the distributees of the estate. If an executor of the estate chooses not to bring forth a wrongful death action, the distributees can request an administrator be appointed to prosecute the action for their benefit.


The amount of damages determined by a court are what it deems to be fair and just compensation for pecuniary injuries resulting from the decedent’s death.  Damages include reasonable expenses for medical aid, nursing, and funeral expenses, “in addition to every other lawful element.”  Punitive damages are designed to punish the defendant in cases of recklessness, or wanton disregard, and could increase a wrongful death claim substantially in some cases.  A settlement amount must be decided upon with the input from lawyers, insurance companies and juries who consider what is a fair and reasonable amount of money, based on a compilation of evidence provided to the court .

Distribution of damages.

According to New York State Law, the distribution of collected damages from a wrongful death action are to be made for the benefit of the decedent’s distributees.  The personal representative will be responsible for distributing the pecuniary damages in proportion to the results agreed upon at a formal hearing, when requested by the personal representative. If no hearing is  requested, then New York Surrogate Court will determine distribution and/or disqualifications of parents, or spouse of the deceased when it is appropriate.  A New York probate attorney can explain the impacts of a wrongful death action on probate.  Each case is unique and outcomes will be contingent on the actions of the personal representative of the estate and the  Surrogate Court. Consult with Ron Meyers, a knowledgeable probate attorney in New York to answer questions and concerns.


Ron L. Meyers & Associates, PLLC

Address:  475 Park Avenue South, Suite 2100

Manhattan, NY 10016

Phone: 212-644-8787






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