Disclaimer: This article is for informational purposes only and does not constitute legal advice.
Detailed Answer
Under New York law, a wrongful death action is governed by Estates, Powers & Trusts Law (EPTL) § 5-4.1. That statute provides that only the personal representative of the decedent’s estate may bring a wrongful death claim, except in limited circumstances. The personal representative must be appointed by the Surrogate’s Court to manage any recovery and distribute it to the decedent’s distributees (spouse, children, parents, siblings, or other next of kin).
To serve as personal representative, you generally must open an estate in the county where the decedent resided by filing a petition in Surrogate’s Court. If the decedent left a will, you apply for letters testamentary. Without a will, you apply for letters of administration. See SCPA § 701. The court will require the death certificate, the original will (if any), and a list of distributees.
Once appointed, the personal representative has exclusive authority to file the wrongful death lawsuit. If no letters have been issued when the cause of action accrues, the decedent’s distributees may commence the action themselves within the two-year statute of limitations under CPLR 214 (CPLR § 214). However, those distributees must substitute a properly appointed personal representative within 120 days of commencement or risk dismissal.
Because New York’s wrongful death statute imposes a two-year deadline from the date of death, it’s important to open the estate and secure letters promptly. If you miss the limitations period or fail to appoint a representative in time, you may lose the right to recover damages for funeral expenses, loss of support, or loss of guidance.
Note also that a separate survival action may exist for the decedent’s own damages (pain and suffering before death, medical bills, lost earnings). That claim also must be brought by the personal representative under EPTL § 11-3.2.
Helpful Hints
- Begin estate administration early to secure letters and avoid delays in filing your wrongful death claim.
- Gather key documents: death certificate, decedent’s will (if any), and list of next of kin.
- Track the two-year statute of limitations for wrongful death under CPLR § 214.
- Remember that non-appointed distributees can only start the lawsuit if no letters are issued, and they must substitute the personal representative promptly.
- Consider both wrongful death and survival actions; each serves different interests of the decedent’s family and estate.