How to make sure a wrongful death settlement is filed and distributed correctly in New York

Short answer: Confirm who has legal authority to settle, get a clear written settlement agreement describing exactly how the money will be paid and split, obtain any necessary court approval (especially when an estate is open, minors or incapacitated persons are involved, or the settlement funds are paid to the decedent’s estate), and follow court filing and distribution procedures under New York law.

Detailed answer — step by step

Below is a practical walkthrough using a simple hypothetical to show the usual steps and legal checkpoints under New York law. This is a general guide — speak to a New York attorney for case-specific advice. This is not legal advice.

Hypothetical facts to illustrate

Imagine a wrongful death lawsuit arising from a traffic collision. The decedent is survived by a spouse and two adult children. The parties reach a $600,000 settlement and agree the split will be 50% to the spouse, 25% to each child.

1. Confirm who can legally settle the claim

Under New York wrongful-death law the claim belongs to the decedent’s distributees and is generally subject to Estates, Powers & Trusts Law (EPTL) procedures. If a personal representative (executor or administrator) has been appointed, that person signs settlement documents for the estate. If no estate administration is open, the distributees or their attorney may be able to sign — but the safest path is to confirm authority in writing or open an administration.

Statute: see EPTL §5-4.1 (wrongful death action). For the statute text, see: https://www.nysenate.gov/legislation/laws/EPT/5-4.1.

2. Put the settlement terms in a written agreement and be precise about allocation

Make sure the written settlement agreement (release and stipulation) includes:

• Full settlement amount.
• How and when payment will be made (single lump sum, structured payments, escrow, or check to the estate).
• Exactly how the net proceeds will be divided (for example, “net of attorneys’ fees and liens: 50% to Spouse, 25% to Child A, 25% to Child B”).
• Who will sign releases and who will receive the settlement check.
• Who pays attorney fees, costs, liens (medical, Medicare/Medicaid, funeral), and how those will be deducted.
• A covenant that each distributee will cooperate in obtaining any required court approvals and releases.

3. Decide whether you must get court approval

Common scenarios that require court supervision or approval:

• The settlement is paid to the decedent’s estate (probate or administration is open) — distributions often require a Surrogate’s Court accounting or order.
• A minor or legally incapacitated distributee will receive a portion — New York courts usually require approval to protect the minor’s interests.
• Distributees disagree about distribution; a court can enter an order enforcing the agreed split.

Even when all parties agree, people often ask the Surrogate’s Court to approve a proposed distribution to create a clear, enforceable order directing the fiduciary how to pay. For Surrogate’s Court general information, see: https://www.nycourts.gov/courts/surrogate/.

4. Handle liens and deductions before dividing the money

Common mandatory deductions include attorney fees (if charged on a contingency), litigation costs, medical provider liens, Medicare/Medicaid repayment claims, and funeral expenses. Identify and resolve all liens before dividing net proceeds. Put lien resolution language into the settlement agreement and require the payer or escrow agent to hold back funds for payoff or to issue payment directly to lienholders.

5. Make payment instructions clear and protect the funds

Best practices:

• Prefer issuing the settlement check to the estate (for administration) or to an escrow account controlled by the parties or the parties’ counsel until the distribution order is entered. This avoids multiple endorsements and confusion.
• If the parties want direct payment to distributees, have each distributee sign a release and a written allocation schedule and require the payer to confirm net amounts after approved deductions.
• Use a court-supervised disbursement if funds will go to minors or to an estate not yet closed.

6. File the right court papers to close the case

If you settled while litigation was pending, the parties should file a stipulation of discontinuance or a stipulation of settlement under the CPLR, and follow local rules for submission so the action is dismissed after payment and release are complete. If the settlement requires a Surrogate’s Court order (see step 3), prepare a petition or motion asking the Surrogate’s Court to approve the settlement and issue an order directing distribution.

7. Get an enforceable distribution/order and keep proof

When you get a signed court order or a signed settlement agreement with the releases, keep certified copies. A Surrogate’s Court order directing distribution gives the fiduciary safe harbor to distribute funds exactly as the order says.

8. If anything goes wrong, seek court enforcement

If a party refuses to follow the written allocation, a party can petition the court to enforce the settlement agreement or the Surrogate’s Court distribution order. Courts give considerable weight to clear written agreements and court orders.

Key New York law references

• Wrongful-death causes of action and who may bring them: EPTL §5-4.1 — https://www.nysenate.gov/legislation/laws/EPT/5-4.1
• Surrogate’s Court information (procedure for estate matters and distribution): New York State Unified Court System — Surrogate’s Courts — https://www.nycourts.gov/courts/surrogate/

Practical document checklist

1. Fully executed written settlement agreement and release with an allocation schedule.
2. Proof of authority to settle (letters testamentary or a written signed authority if no estate is open).
3. Lien payoff instructions or lien releases (medical, Medicare/Medicaid, funeral).
4. Proof of payment (cancelled checks) or escrow accounting.
5. Court order approving and directing distribution if required.
6. Signed receipts from distributees showing they received their portion.

Helpful Hints

• Do not split funds before clearing liens unless everyone agrees and signs a clear release allocating responsibility for liens.
• When in doubt, ask the payer to make the check payable to the decedent’s estate or to an escrow account and then get a Surrogate’s Court order for distribution.
• If minors are involved, expect the court to require a guardian or a settlement approval process to protect the minor’s share.
• Keep detailed records of every step: signed releases, bank deposits, disbursement ledgers, and court filings — these protect everyone if a dispute later appears.
• Ask the settling defendant to provide a copy of the release tied to the settlement check (so all parties sign off before funds move).
• Consider short written acknowledgments from each distributee confirming they understand and accept the net split after fees and lien payoffs.

When you should talk to an attorney

Consult a New York attorney if any of the following apply:

• There is disagreement about who should receive money or how much.
• One or more distributees are minors or legally incapacitated.
• The settlement will be paid to the estate and distribution requires Surrogate’s Court action.
• There are significant liens, Medicare/Medicaid interests, or government subrogation claims.

Disclaimer: This article explains common New York procedures and is for educational purposes only. It does not constitute legal advice. For advice about your specific case, consult a licensed New York attorney.