A phone call shatters a family’s afternoon. There’s been an accident at a construction site in Manhattan, and a husband and father isn’t coming home. In the wake of such a tragedy, the family’s focus is on grief and survival. But soon, another reality emerges—the largest asset their family has may be a wrongful death lawsuit. Suddenly, the roles of spouse and parent are complicated by a new one: steward of a potential multi-million-dollar legal claim that belongs to the estate.
As an estate attorney, I’ve seen how these situations merge two distinct areas of law. The administration of the estate becomes intertwined with the pursuit of justice. The process is not straightforward. The family must understand who is in control and where the money actually goes.
The Right to Sue Belongs to the Estate
When a person dies due to another’s negligence, the surviving family members—even a spouse or child—cannot simply file a lawsuit in their own name. The legal right to bring that action, both for the decedent’s conscious pain and suffering and for the family’s own losses, belongs to the personal representative of the decedent’s estate.
Who is this person?
- If your loved one had a will, it is the Executor named in that document.
- If they died without a will (intestate), the Surrogate’s Court will appoint an Administrator.
This is a critical first step. Before any claim can be pursued, a petition must be filed in Surrogate’s Court to have the representative formally appointed. This person becomes a fiduciary, legally bound to act in the best interests of the estate and its beneficiaries. Their duties include not just marshalling assets like bank accounts and real estate, but also managing the wrongful death litigation. This responsibility is significant—it requires selecting a litigation attorney, making decisions about settlement offers, and ultimately accounting for all funds recovered.
Two Claims, Two Paths for Recovery
A common misunderstanding is that all money recovered from a lawsuit will be distributed according to the decedent’s will. In New York, a wrongful death case involves two distinct claims, and the proceeds are treated very differently.
First is the personal injury claim. This seeks compensation for the conscious pain and suffering the decedent endured from the moment of injury until their death. Any money recovered for this claim becomes an asset of the estate. It is used to pay the decedent’s final bills, creditors, and administrative expenses. Whatever is left is then distributed to the beneficiaries named in the will or, if there is no will, to the heirs dictated by state intestacy laws.
Second is the wrongful death claim. This is for the financial—or “pecuniary”—losses suffered by the decedent’s surviving family members. This includes lost wages, loss of support and services, and funeral expenses. These funds do not belong to the estate. Instead, they are distributed directly to the family members who can demonstrate financial dependency. The will has no control over this portion of the recovery.
This distinction matters immensely for the surviving spouse and children. It means a creditor cannot typically lay claim to the wrongful death portion of a settlement, which is intended solely to provide for the family’s future.
The Surrogate’s Court Must Approve Any Settlement
The personal representative cannot unilaterally accept a settlement offer and distribute the money. Every wrongful death settlement in New York must be reviewed and approved by the Surrogate’s Court. This is a crucial safeguard mandated by law.
Specifically, Estates, Powers and Trusts Law (EPTL) § 5-4.6 requires the fiduciary to petition the court for approval of any compromise. The court examines the fairness of the settlement amount, the proposed attorneys’ fees, and the plan for distributing the funds between the personal injury and wrongful death claims. The judge’s role is to protect the interests of all beneficiaries—especially if any of them are minors—and ensure the allocation is just and proper.
This court oversight provides a layer of protection and finality. It ensures that the fiduciary has met their duty and that the distribution of funds is legally sound, preventing future disputes among family members. Stewardship. This is the core of a fiduciary’s duty—a responsibility the court exists to enforce.
If you are the named executor for a loved one whose death may lead to a wrongful death action, your role is more complex than you might have imagined. You are not just settling an estate; you are overseeing a significant piece of litigation on behalf of the entire family. The first prudent step is to gather the decedent’s will and any estate planning documents to begin the process of seeking authority from the court to act as the estate’s fiduciary.
