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When you lose a family member because of someone else’s negligence in New York, the legal system gives you two distinct claims that work together. Most families think there is one. The difference between handling them as one case and handling them as two cases can change the outcome substantially.
We approach wrongful death and survivor cases the same way we approach any catastrophic case: with the precision the family deserves and the discretion the loss requires.
When you lose a family member because of someone else’s negligence in New York, the legal system gives you two distinct claims that work together. Most families think there is one. The difference between handling them as one case and handling them as two cases can change the outcome substantially.
We approach wrongful death and survivor cases the same way we approach any catastrophic case: with the precision the family deserves and the discretion the loss requires.
New York law splits a death-by-negligence case into two parallel actions, governed by different statutes and providing different damages.
The wrongful death action under EPTL §5-4.1 is brought by the personal representative of the estate on behalf of the distributees — generally the spouse, children, and parents. It compensates the family for the pecuniary loss they suffered because the person died.
The survival action under EPTL §11-3.2 is brought by the estate itself and compensates for what the person who died experienced before death — conscious pain and suffering, medical bills incurred between the injury and the death, and lost wages during that interval. It is the claim the person could have brought themselves if they had survived.
The two claims are typically filed together, valued together, and settled together. But they have different beneficiaries, different proof, and different damages models. A serious wrongful death practice treats them as the separate cases they are.
The wrongful death claim does not compensate the family for grief, emotional suffering, or loss of the relationship in the abstract. New York wrongful death damages are restricted to pecuniary loss — the financial support, services, and inheritance the family lost. That includes:
The pecuniary-loss limitation is one of the most criticized features of New York wrongful death law. It is also the framework. Building the damages case requires economic-loss modeling, often with a forensic economist, and a careful record of what the deceased contributed to the family financially and otherwise.
Where the wrongful death claim is forward-looking — what the family lost going forward — the survival claim is backward-looking. It covers what the person experienced between the moment of injury and the moment of death.
If the death was instantaneous, the survival claim may be limited. If there was a meaningful period of conscious pain and suffering — even hours — the survival claim can be substantial. Medical bills incurred between injury and death belong to the survival claim. Lost wages between injury and death belong to the survival claim. Pre-death anxiety and fear of impending death, where supported by the record, belong to the survival claim.
You have two years from the date of death to file a wrongful death action in New York under EPTL §5-4.1. This is shorter than the three-year statute that applies to most personal injury claims under CPLR §214. Families often assume they have three years and find out otherwise too late.
If a public entity is responsible — a city hospital, NYCHA, the MTA, a school district — a 90-day Notice of Claim is also required under General Municipal Law §50-e. The 90 days runs from the date the cause of action accrued, which for wrongful death is the date of death. See our Notice of Claim Guide for the full mechanics.
Recoveries in a wrongful death case are distributed among the deceased’s distributees according to New York’s intestacy rules — even where there is a will. The will controls the disposition of the deceased’s property, but the wrongful death recovery is its own statutory creation that follows EPTL §4-1.1 distribution.
This rarely matters in the typical case where the family is unified. It can matter substantially in cases involving:
We have handled cases where the distributee question itself becomes a separate negotiation. The earlier these issues are surfaced, the more cleanly they get resolved.
Wrongful death claims in our practice typically arise out of:
Each underlying cause has its own evidentiary playbook. The damages framework above is constant.
