Who can File a Wrongful Death Lawsuit?

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Your mother was killed by medical negligence. Your spouse died in a car accident caused by a drunk driver. A construction accident claimed the life of your brother.

These are all examples of wrongful death. Wrongful death occurs when a person is killed by the negligence or intentional acts of a third party. This means that if a person kills another person, the killer can be sued for wrongful death. A wrongful death claim is a civil suit, so the person would have to face a criminal case as well to be convicted for his or her crimes.

Proving Wrongful Death

Not every untimely death can be classified as a wrongful death. Five elements must be proven:

  • A person died.
  • The death was caused by the wrongful conduct of a third party.
  • The claim could have been pursued in court by the victim if death had not occurred.
  • One or more surviving family members have suffered a loss due to the person’s death.
  • There are damages that the family members can recover from the estate.

Only Personal Representatives can File Suit

Under the New York State Senate, Estates, Powers & Trusts (EPT), Section 5-4.1, a person has two years from the date of death to file a wrongful death lawsuit. However, not just anyone can file a suit. In New York, even a close family member may not be able to file a claim. Unlike other states, New York is very strict in this regard. Only the person who is considered the personal representative of the victim’s estate can file a wrongful death lawsuit. Therefore, if the victim’s husband is the personal representative, only he can file a claim.

However, the personal representative can claim damages that other family members have suffered. For example, children can receive compensation for a lost inheritance. If the deceased provided financial support or services to other family members, they can claim those losses, as well. Other damages can be claimed as well, including medical bills, funeral expenses, pain and suffering of the deceased and lost wages.

New York wrongful death law is unique in another way. The state does not allow surviving family members to recover compensation for their pain and suffering or mental anguish caused by the death. This is true even if the victim was a child. Also, New York does not allow a person to file a wrongful death claim for a fetus that dies before birth. Therefore, if a pregnant woman is assaulted and she suffers a miscarriage, she cannot file a wrongful death lawsuit because her unborn baby died.

Work With an Experienced Wrongful Death Attorney

If your loved one was killed by someone else’s negligence, you may be devastated and angry. While filing a lawsuit will not bring your loved one back to life, you can obtain compensation to help pay for expenses, such as funeral expenses and medical bills.

The wrongful death lawyers at Peters Berger Koshel & Goldberg, P.C. can assess your case and help you obtain justice. We can help you through this difficult time. To schedule a free consultation, call our office at (800) 836-7801.


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