The law in New York allows the estate of the decedent (the deceased person) to bring a claim on behalf of those family members who have been financially affected by the death. This claim, known as a Wrongful Death cause of action, can be brought only by a child of the decedent, a parent of the decedent, the spouse of the decedent or the duly appointed estate representative, and must be brought within two years of the date of death. This period is shorter than the three-year statute of limitations that applies to most negligence claims, and therefore an early consultation is of utmost importance.
Wrongful Death Suits are Typically Joined with Claims for Pain and Suffering of the Decedent. Wrongful death suits can be thought of as a combination of two different types of lawsuits.
First, In a fatality, the decedent may have a claim for the pain and suffering
experienced prior to death. New York State allows these claims to survive the death of the injured person. As a result, when death occurs, claims for pain and suffering are legally transferred to (and become a part of) the decedent’s estate, which is administered by a personal representative. A claim for pain and suffering then could be brought by the personal representative for the beneficiaries of the estate, who would then be entitled to this portion of any settlement or verdict.
Second, certain family members and those financially dependent upon the decedent will have a wrongful death claim
based upon lost earnings, loss of companionship, and similar damages resulting from their loved one’s death. Unlike the pain and suffering claim, which is based upon damages to the decedent, the wrongful death claim is based on damages to family members and those financially dependent upon the decedent. The family members and dependents entitled to receive benefits under the wrongful death claim and the beneficiaries entitled to share in the estate of the decedent may or may not be the same people.
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