New York Wrongful Death Laws: Deadlines, Damages, and Who Can File

Under New York wrongful death laws, the personal representative of the deceased person’s estate has two years from the date of death to sue whoever caused that death through negligent or wrongful conduct, and any money recovered is limited to the actual financial losses the surviving family suffered. Grief, emotional pain, and loss of companionship are not compensable. The governing statute sits in the Estates, Powers and Trusts Law, Article 5, Part 4.

Who Is Allowed to File

Only the personal representative of the estate can bring the lawsuit. A grieving spouse, parent, or child cannot sue in their own name, even when they are the people most affected by the death. The personal representative is either the executor named in the will or an administrator appointed by the Surrogate’s Court when there is no will. That person acts as a fiduciary, running the lawsuit on behalf of everyone entitled to share in the recovery.

If the will names an executor who refuses to pursue the claim, the people who would inherit can petition the court to appoint an administrator for the specific purpose of filing the suit.¹ The appointment process requires a petition in Surrogate’s Court along with a death certificate.² This step takes time, and nothing can be filed in civil court until it is done.

The Two-Year Deadline

The statute of limitations is two years from the date of death. Miss it and the claim is almost always gone for good, no matter how strong the underlying evidence.¹

One narrow exception applies when a criminal case has been filed against the same defendant for the same incident. The personal representative then has at least one year from the end of the criminal case to file the wrongful death action, even if the original two-year window has closed in the meantime.¹ This comes up in drunk driving fatalities and workplace deaths where prosecution runs alongside the civil case.

The two-year clock runs from the date of death, not from the date of the underlying injury. Because the personal representative has to be appointed through Surrogate’s Court before any lawsuit can be filed, families who wait a year to consult a lawyer sometimes find themselves rushing just to get authority to sue.

The 90-Day Rule for Government Defendants

Suing a city, county, school district, or any other municipal body carries a much shorter trigger. A notice of claim must be filed within 90 days. For wrongful death cases, the 90 days runs from the date the personal representative is appointed, not from the date of death.³ Missing it usually ends the case before it starts.

The notice has to identify the claimant, state when and where the incident happened, describe how it happened, and specify the injuries or damages. Courts can grant permission to file a late notice in limited circumstances, but even an extension cannot push the deadline past the two-year statute of limitations.³

Claims against the State of New York itself run through the Court of Claims. The personal representative must file the claim with the Attorney General within 90 days of being appointed, or file a written notice of intention in that same 90-day window and then submit the full claim within two years of the death.⁴ When a public employee or public property may be involved, getting the personal representative appointed is the first thing to handle after the funeral, because the 90-day clock will not wait.

What Families Can Recover

New York limits wrongful death recovery to “pecuniary injuries,” meaning the actual financial losses the surviving family members suffer because the person is gone. The state does not allow compensation for grief, emotional suffering, or loss of companionship. This single rule is the biggest difference between New York and most other states, and it drives down the value of cases involving retirees, homemakers, and children without earnings.

Lost Financial Support

The largest component of most awards is the income and support the deceased would have provided over their remaining lifetime. Courts look at age, health, earning history, and career trajectory. Forensic economists testify about expected future earnings, adjusted for inflation and reduced to present value. Tax returns, pay stubs, and employment records anchor the calculation.

Loss of Parental Guidance

For surviving children, New York allows recovery for the loss of a parent’s guidance, training, and care. Even though it sounds emotional, courts treat it as a pecuniary damage with measurable value. Younger children typically receive larger awards because they lost more years of guidance. Testimony from teachers, relatives, and child development experts helps establish what the parent’s absence actually costs.

Medical and Funeral Expenses

The estate can recover reasonable medical costs incurred between the injury and the death, along with funeral and burial expenses. These require documentation: bills, invoices, receipts.

Interest From the Date of Death

New York adds interest to the recovery calculated from the date of death, not from the verdict or settlement.⁵ In cases that take several years to resolve, that interest can add substantially to the total.

Punitive Damages

Punitive damages are technically available for deaths occurring after September 1, 1982, when the defendant’s conduct was egregious enough that punitive damages would have been recoverable in a personal injury case.⁶ Courts rarely award them and reserve them for intentional or reckless misconduct far beyond ordinary negligence.

Survival Actions Are a Separate Claim

A survival action is a different lawsuit, usually filed alongside the wrongful death case. The wrongful death claim compensates the family for their financial losses going forward. The survival action compensates the estate for the pain and suffering the deceased person consciously experienced between the injury and the death.⁶

The distinction has real consequences for who ends up with the money. Survival action proceeds belong to the estate and are distributed under the will, or under the intestacy statute when there is no will. Wrongful death proceeds skip the will entirely and go only to the distributees in proportion to their financial losses.

Who Gets the Money

Wrongful death proceeds go to the “distributees,” meaning the people who would inherit under New York’s intestacy laws:

Spouse and children survive: the spouse receives $50,000 plus half the remainder, and the children split the rest.
Spouse but no children: the spouse receives everything.
Children but no spouse: the children split everything equally.
Parents but no spouse or children: the surviving parent or parents receive the full recovery.

These categories come from the general intestacy statute, but the wrongful death law adds a crucial wrinkle. Proceeds are not divided equally among distributees. They are divided in proportion to each person’s actual financial loss.⁷ A court hearing determines the split. A young child who depended entirely on the deceased parent typically receives a larger share than an adult sibling with an independent income.⁸

When a minor child is entitled to more than $10,000 from the recovery, the court must appoint a guardian for the child’s share.⁹ The money typically sits in a blocked account or trust until the child reaches adulthood, which prevents a lump sum from being spent before the child is old enough to manage it.

If the Deceased Was Partly at Fault

New York follows comparative negligence. The deceased person’s own share of fault reduces the recovery but does not eliminate the claim. If a jury finds the deceased was 30 percent at fault, the award drops by 30 percent. The statute frames liability as whether the defendant “would have been liable to the decedent” for the wrongful conduct had the person survived.¹ If the deceased could have sued for personal injury had they lived, the estate can sue for wrongful death because they did not.

What the Lawyer Takes

New York caps contingency fees in personal injury and wrongful death cases through two schedules. Schedule A is a sliding scale: 50 percent of the first $1,000 recovered, 40 percent of the next $2,000, 35 percent of the next $22,000, and 25 percent of anything over $25,000. Schedule B is a flat 33⅓ percent of the total recovery. The attorney and client choose which one applies, but neither can be exceeded without court approval.

On a $500,000 recovery, Schedule A yields about $127,750 in fees (roughly 25.5 percent), while Schedule B yields about $166,667. Most firms default to Schedule B for simplicity. Families should ask which schedule the lawyer plans to use and run the numbers on their own case.

Taxes and Government Benefits

Most wrongful death proceeds are not taxable federal income. Damages received on account of personal physical injuries are excluded from gross income under the Internal Revenue Code, and wrongful death claims are rooted in physical harm. The exclusion covers compensation for lost earnings, loss of parental guidance, medical expenses, and funeral costs. Two categories fall outside the protection: punitive damages are taxed as ordinary income, and the interest New York adds from the date of death is taxable even though the underlying damages are not.¹⁰

There is another trap. If the family previously deducted medical expenses on a tax return and then recovers those same expenses in the lawsuit, the recovered portion may be taxable to the extent the earlier deduction cut their tax bill. How the settlement agreement labels each type of payment matters, because the IRS relies on that language. Vague drafting invites unnecessary tax exposure.

The recovery can also disrupt means-tested benefits. Supplemental Security Income has a resource limit of $2,000 for an individual and $3,000 for a couple in 2026.¹¹ A lump sum that pushes a distributee’s countable assets above the limit can suspend or terminate benefits. The distributee can spend the funds down within the month of receipt on exempt items such as paying off a mortgage or making necessary home modifications, or the money can go into a special needs trust that pays for things SSI does not cover without counting against the resource limit. For a minor distributee who already receives benefits, setting up the trust before the funds are distributed is essential.

New York’s Medicaid program may also seek reimbursement from the deceased person’s estate when the recipient was over 55 or was permanently institutionalized. That claim comes out of estate assets, not out of the distributees’ personal funds, and is satisfied only after funeral expenses, administrative costs, and federal liens are paid.¹²

Will the Pecuniary-Only Rule Change?

The pecuniary-only rule has drawn sustained criticism from families who lose a retired parent or a child with no earnings history, because the law assigns very little financial value to those deaths. The Grieving Families Act has been introduced multiple times in the state legislature to change this. The most recent version would have expanded recoverable damages to include grief, loss of companionship, and loss of nurture and guidance for a broader group of beneficiaries, and would have extended the statute of limitations from two years to three.¹³

As of the 2025–2026 legislative session, the bill has been vetoed by the Governor. It could be reintroduced in a future session. Until something passes, New York remains one of the most restrictive states in the country for wrongful death damages, and families need to plan around a law that compensates financial loss, not emotional devastation.

1
New York State Senate. New York Estates, Powers and Trusts Law 5-4.1 – Action by Personal Representative for Wrongful Act, Neglect or Default Causing Death of Decedent
2
Legal Information Institute. New York Comp Codes R and Regs Tit 22 207.15 – Birth and Death Certificates
3
New York State Senate. New York General Municipal Law 50-E – Notice of Claim
4
New York State Senate. New York Court of Claims Act CTC 10
5
New York State Senate. New York Estates, Powers and Trusts Law 5-4.3
6
New York State Senate. New York Estates, Powers and Trusts Law 11-3.2 – Action for Injury to Person or Property Survives Despite Death
7
New York State Senate. New York Estates, Powers and Trusts Law 5-4.4
8
New York State Senate. New York Estates, Powers and Trusts Law 4-1.1 – Descent and Distribution of a Decedents Estate
9
New York State Unified Court System. Wrongful Death Compromise Settlement Proceeding Checklist
10
Office of the Law Revision Counsel. 26 USC 104 – Compensation for Injuries or Sickness
11
Social Security Administration. 2026 Cost-of-Living Adjustment (COLA) Fact Sheet
12
Office of the Medicaid Inspector General. Casualty and Estate Recovery – Estate Recovery
13
New York State Senate. NY State Senate Bill 2025-S4423