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Who Can Bring a Wrongful Death Claim?

wrongful death

The majority of personal injury actions occur because the negligent action or inaction of someone else led to injury and associated damages. When the injury proves fatal, the action becomes one for wrongful death. While many states allow family members of the deceased to bring a wrongful death action, that is not always the case in New York.

Who Can Bring a Wrongful Death Claim?

The State of New York considers wrongful death to be an injury to the victim and continues to deem it a personal action, even though the victim is no longer alive. Because the victim is unable to bring the action, the personal representative of his or her estate is empowered to bring the action on his or her behalf. That is why a family member in New York may not be able to bring a wrongful death action. A family member will only be authorized to do so if he or she is also the personal representative of the deceased’s estate.

A personal representative is tasked with overseeing the management and eventually distribution of a decedent’s estate. Many times, a trusted friend or family member is appointed in the will of a decedent. Other times, when there is no will or no appointment of a personal representative made in a will, the court will determine and appoint a personal representative instead.

Now that you know that the personal representative and not necessarily a family member is the only party authorized to bring a wrongful death action, you may be wondering who actually receives money from a successful wrongful death action. First and foremost, it is important to be aware of the fact that, while a personal representative may be the only one properly named in a wrongful death case, he or she is not necessarily going to be the recipient of any damage award.

Damages recovered in a wrongful death action are included in the estate of the decedent. This goes back to the fact that the action is considered to be a personal action on behalf of the deceased who is unable to bring the action for his or her own self. The damages are considered to belong to the decease, which means they are included in the estate. When there is a will or trust in place, the proceeds from the wrongful death claim go into the estate and are then distributed according to the terms of the will or trust in place. When there is no will or trust in place, the estate is distributed according to state intestate laws. Intestate laws usually distribute an estate based on the degree of relation to the deceased, beginning with relatives closely related to the deceased and moving on from there.

Person Injury Attorney

Has a loved one been fatally injured in an accident? If so, a wrongful death claim may get him or her some of the justice deserved. Talk to Attorney Michael LoGiudice about your options. He is here to serve as a trusted advocate for you and your loved ones. Contact us today.

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