After experiencing the traumatic death of a loved one because of someone else’s negligence, pursuing a legal claim can feel overwhelming. However, an experienced New York wrongful death lawyer can help guide you through the process and get your family the compensation they deserve.
On this page, the trusted legal team at Richmond Vona explains the key steps in preparing a wrongful death claim in New York. If you need assistance with filing a wrongful death lawsuit, contact us online or call 716-500-5678 today for a free consultation.
What Is a Wrongful Death Lawsuit?
When someone passes away in an accident caused by another person or entity’s negligence, the victim’s family may be entitled to pursue compensation from the party that caused the accident. Family members generally file a wrongful death suit to obtain compensation for medical bills, funeral costs, and other challenges they’re facing due to their loss.
Who Can File a Wrongful Death Lawsuit in New York?
According to the New York law §4-1.1, only the following parties are permitted to take legal action on behalf of someone who passed away in an incident caused by another party:
- Children of the decedent
- Parents of the decedent
- The decedent’s spouse
- The executor of the decedent’s estate
If you have one of the relationships mentioned above with the deceased individual, it’s highly likely that you’ll be eligible to pursue compensation.
How to Prepare a Wrongful Death Claim
Here are five steps to take if you are preparing a wrongful death claim in New York:
Step #1: Confirm Eligibility to File
While eligibility varies depending on state law, a personal representative of the decedent’s estate or their close family members are typically allowed to file a wrongful death lawsuit. In New York, only the decedent’s court-appointed personal representative may file a wrongful death lawsuit on behalf of surviving family members. Spouses, parents, and children may receive proceeds as distributees, but they do not file the lawsuit unless they are appointed as the personal representative.
Since not everyone can file a wrongful death claim, it’s important for families to confirm their eligibility before building a case. Our knowledgeable New York wrongful death lawyers can determine whether you can pursue a lawsuit and help you understand your legal options.
Step #2: Obtain the Death Certificate
Before you can take action, your family must get a copy of the victim’s official death certificate. You can order a copy online through the New York State Department of Health.
The certificate will serve as official proof of death, including the date and cause. If you’re unsure how to obtain a death certificate or have other questions, our wrongful death lawyers can help.
Step #3: Select a ‘Personal Representative’
In New York, a wrongful death lawsuit must be filed on the surviving family’s behalf by a personal representative of the victim’s estate. If there is a will, the named executor seeks appointment; if not, an eligible distributee (often a spouse, adult child, or parent, as discussed above) petitions the court to be appointed administrator. Once the appointment has been made, the lawsuit can proceed.
Step #4 Work With an Experienced Wrongful Death Attorney
Wrongful death claims can become very complicated, especially once investigations, negotiations, and potentially even trial preparation become involved. Consulting with a skilled wrongful death lawyer early can put you in the best position to build a strong case and get the justice your family deserves.
Our trusted New York wrongful death attorneys can help protect your family’s rights, take on the legal burden while you grieve your loss, and pursue maximum compensation from those responsible. Reach out to us today to schedule a free consultation with our team.
Step #5: Investigate the Accident and Secure Evidence
A proactive, comprehensive investigation is crucial to proving that the defendant’s negligence contributed to your loved one’s death. Your attorney will seek to gather key evidence to prove the other party’s liability, including:
- Police reports and accident records
- Medical records and documents
- Photo and video of the scene, injuries, or incident
- Witness statements
- Opinions from experts who can explain how the other party acted negligently
It’s important to work with a skilled wrongful death lawyer to begin an investigation immediately after a fatal accident, as evidence can become harder to find, and witness memories can fade as time passes.
Step #6: Identify Liable Parties
In some cases, multiple parties can share blame for a fatal accident. While investigating your loved one’s death, your lawyer will determine who was responsible and build a wrongful death case against each liable party. Examples of parties that can be legally responsible for a wrongful death include:
- Reckless drivers who cause motor vehicle accidents
- Property owners who fail to address dangerous conditions
- Employers who allowed hazards to exist in the workplace
- Manufacturers of defective products
- Trucking companies that violate safety regulations
- Health care providers who commit or are responsible for medical malpractice
Step #7: Document Damages
To obtain fair compensation for your loved one’s passing, your family must first calculate the full extent of their economic and non-economic damages.
Economic damages are monetary losses suffered because of the victim’s death, including their medical bills, burial and funeral costs, and lost income and financial support. Non-economic damages compensate for intangible impacts to your family’s well-being, such as emotional trauma, grief, loss of companionship, loss of parental guidance, and more.
Your attorney can help you keep organized records of your damages, such as retaining receipts and taking personal notes about your experiences as you grieve.
Step #8: File the Claim Within the Statute of Limitations
States often have strict deadlines for filing wrongful death claims that can differ from those for other personal injury claims. In New York, the statute of limitations for wrongful death lawsuits is two years from the day of the victim’s death, one year less than the timeline for general cases. If a city, county, or other public entity may be involved, you must also meet special notice requirements—including a Notice of Claim within 90 days.
Missing the filing deadline almost always means losing your right to file a claim, so it’s important to get started immediately. If you need help pursuing a wrongful death claim on behalf of a loved one, the trusted team at Richmond Vona is ready to help. Contact us online or call 716-500-5678 today to schedule a free consultation.
Do You Have to Go to Court for Wrongful Death in New York?
While some cases must go to trial to reach a favorable outcome, many are resolved before the plaintiff and defendant ever step foot in the courtroom. A lawyer can assess your situation and determine if it’s likely you’ll have to go to court for your wrongful death claim.
Your attorney can also push for an out-of-court settlement, negotiating with the defendant’s lawyer to obtain a fair payment for your suffering and financial losses. In most cases, defendants are eager to settle out-of-court, as there are certain incentives to do so, including:
- Court costs: Settling out of court can be more cost-effective than going to trial. Settling out-of-court will allow the defendant to avoid paying attorney fees, court fees, and other expenses.
- Time: Wrongful death trials can last months or even years. The defendant in your case may agree to settle out of court to avoid having to endure a lengthy legal battle.
- Uncertainty: Trials can be unpredictable, which means there’s always a chance the defendant will get an unfavorable outcome. Settling out of court gives more control to both sides, making it likely that the defendant will want to avoid a trial.
- Reputation: Since court proceedings can attract negative media attention, avoiding a public trial can help protect the defendant’s reputation. If the defendant wants to avoid the reputational damage of a trial, you probably won’t have to go to court for your wrongful death claim.
What if You Have to Go to Court for a Wrongful Death Claim?
In the event that your claim doesn’t settle out of court, you’ll likely have to go to trial to get the compensation you deserve. However, your lawyer can handle your entire case, making the process as easy as possible for you. Here’s what your wrongful death attorney can do to make your court case successful:
- Present evidence that demonstrates the defendant’s negligence and liability
- Convey the impact that your loss has had on you to the jury
- Use eye-witness testimony to strengthen your case
- Give compelling opening and closing statements
- Refute the defense’s evidence and legal arguments
- Fight tirelessly to obtain the verdict you need to move forward
Compensation You Could Receive From a Wrongful Death Claim
Whether your case settles out of court or if you have to go to court for your wrongful death claim, the compensation you may receive stays the same. The average wrongful death settlement in New York includes the following financial remedies:
- Medical bills
- Funeral costs
- Burial expenses
- Loss of financial support
- Pain and suffering
- Mental anguish
- Loss of consortium
- Loss of enjoyment of life
These damages can provide the financial stability you need to honor your deceased loved one’s memory, cope with your grief, and cover any financial losses you’ve suffered due to their passing. That said, you’ll need a skilled attorney to benefit from these damages. A lawyer will determine which forms of compensation you’re owed and fight for the settlement you deserve.
Filing Deadline for Wrongful Death Suits in New York
New York’s statute of limitations for wrongful death actions gives you two years from the day of your loved one’s passing to submit a lawsuit.
If you don’t act within the period set forth by the statute of limitations, you’ll be denied the compensation you need to navigate the grieving process. The good news is that as long as you contact a skilled lawyer as soon as you can, the attorney will be able to file your suit before it’s too late.
Importance of Hiring a Wrongful Death Lawyer
Filing a strong wrongful death action requires a great deal of effort, experience, and resources. As a result, taking legal action without an attorney is highly inadvisable, as it may result in mistakes that cost you your compensation. Instead, you’ll want to hire an experienced attorney who has a history of obtaining favorable case results for clients dealing with similar situations.
Here’s what a skilled wrongful death attorney can do to make your case successful:
- Investigate the incident your loved one was fatally injured in
- Collect eyewitness testimony, photos of the accident scene, medical records, accident reports, and other forms of evidence
- File a compelling wrongful death suit on your behalf
- Represent you in court and fight for a fair verdict
- Explain what forms of compensation are included in the average wrongful death settlement
- Offer legal counsel throughout your case
Wrongful Death vs. Survival Action
Families can seek damages for their loved one’s conscious pain and suffering by filing a separate survival action. You can file this claim in addition to a wrongful death lawsuit. An estate representative files the claim, and compensation is distributed to the victim’s heirs based on a will or New York law.
| Aspect | Wrongful Death Claim | Survival Action Claim | |
|---|---|---|---|
| 1 | Who Initiates the Claim | Brought on behalf of the family members | Brought on behalf of the deceased person |
| 2 | Purpose of the Claim | To compensate surviving family members for their losses | To compensate for damages occuring after the negligent act but before death |
| 3 | Type of Damages Compensated | Funeral and burial expenses, loss of income, loss of companionship, loss of parental | Medical expenses, pain and suffering, other post-accident damages |
| 4 | Claim Filed By | Personal representative of the estate | The estate of the deceased |
| 5 | Compensation Recipient | Surviving family members | The estate (distributed according to the deceased's estate plan or New York |
Learn more about the differences between wrongful death and survival action claims.
Comparative Negligence in Wrongful Death Cases
New York is one of several states that have a pure comparative negligence law. A plaintiff can collect damages if they aren’t 100 percent responsible for their accident and injuries, but the percentage of fault they hold reduces their compensation. For example, if you are 20 percent responsible, you can collect 80 percent of your damages. When you file a wrongful death claim, your loved one’s responsibility for the accident, if any, affects your compensation.
How Winter Weather Can Affect Who's Liable in a Wrongful Death
You can file a wrongful death case if winter weather has played a role in your loved one’s death, but you must prove that the accident wouldn’t have occurred without someone else’s negligent or reckless actions or inactions. Property owners and others have a legal duty to follow snow and ice removal laws. Drivers also must make adjustments for the weather. When they fail in that duty, they may be liable for damages.
