What Is New York’s Wrongful Death Statute? Deadline, Damages, Beneficiaries

New York’s wrongful death statute, codified at EPTL 5-4.1, lets the estate of a person killed by someone else’s wrongful act sue for financial compensation on behalf of surviving family members.¹ The lawsuit must be filed within two years of the death by a court-appointed personal representative, and only certain relatives defined by the intestacy laws can share in the recovery. The damages are limited to economic losses. New York does not allow surviving family to collect for their own grief, emotional suffering, or loss of companionship.

Who Can File the Lawsuit

A grieving spouse, parent, or child cannot walk into court and file a wrongful death case on their own. Only a personal representative appointed by a Surrogate’s Court has standing. That person holds either letters testamentary, if there is a will, or letters of administration, if there is not.¹ Without those court-issued letters, the case gets dismissed for lack of standing.

The representative acts as a fiduciary for all the beneficiaries, which keeps control of the litigation in one accountable set of hands.² If a will names an executor who refuses to pursue the claim, the distributees can ask the court to appoint a separate administrator for that purpose.¹ Getting appointed takes time, and that time runs against the filing deadline, so the appointment process is worth starting early.

Who Qualifies to Share in the Money

Recovery goes only to “distributees,” the group of relatives defined by New York’s intestacy statute at EPTL 4-1.1.³ The law follows a strict hierarchy:

A surviving spouse and children share the recovery when both exist.
A surviving spouse alone takes everything if there are no children.
Children alone take everything if there is no spouse.
Parents become distributees when no spouse or child survives. If the deceased leaves a spouse and a parent but no children, the parent is also treated as a distributee for wrongful death purposes.⁴
Siblings, grandparents, and more distant relatives come next if none of the above survive.

The list is rigid. Domestic partners, close friends, non-relative dependents, stepchildren, and foster children get nothing from a wrongful death recovery unless they fall within the statutory categories. Adopted children do qualify, because New York treats them the same as biological children for inheritance purposes.³ A stepchild or foster child who was never formally adopted has no legal claim, no matter how close the relationship was.

The Two-Year Deadline

The personal representative generally has two years from the date of death to file the lawsuit.¹ Miss it and the court will almost certainly dismiss the case, however strong the facts are. The clock starts on the date of death, not the date of the injury that caused it.

Two exceptions extend the deadline. Deaths from the September 11, 2001 terrorist attacks carry a two-year, six-month deadline.¹ And if criminal charges have been filed against the same defendant for the same event, the representative has at least one year from the end of the criminal case to file the civil action, even if the standard two-year window has already closed.

Medical malpractice cases bring an added complication. The malpractice statute of limitations at CPLR 214-a is two years and six months from the act of malpractice, and a wrongful death arising from malpractice may implicate that longer timeframe depending on when the death occurred relative to the negligent treatment.⁵ The two clocks can produce different deadlines in the same case, so families dealing with a malpractice death need to confirm which one controls.

What You Can Recover

Damages are limited to “fair and just compensation for the pecuniary injuries” suffered by the distributees. That means financial losses only.⁶ The court looks at what the deceased would have provided the family had they lived and puts a dollar figure on it. Typical categories include:

Lost income and benefits the deceased would have earned and shared, including wages, health insurance, and retirement contributions.
The economic value of household services the deceased performed, from childcare to home maintenance.
Parental guidance for minor children, which courts treat as financially valuable nurturing and training.
Loss of inheritance, meaning what the deceased likely would have saved and left to heirs.
Reasonable medical expenses related to the fatal injury, paid or owed by a distributee.
Reasonable funeral and burial costs, paid or owed by a distributee.⁶

Projecting future lost income and services usually requires an economist, whose assumptions about earnings growth, inflation, and present value can swing a case’s worth considerably.

What you cannot recover matters just as much. New York does not allow surviving family members to collect for their own grief, emotional suffering, or loss of companionship. This is one of the most restrictive approaches in the country, and it catches many families off guard.

Interest Runs From the Date of Death

Any wrongful death judgment automatically includes interest calculated from the date of death, not from the verdict.⁶ New York’s statutory rate is nine percent per year.⁷ In a case that takes three or four years to reach trial, that interest can add a substantial amount to the award and gives defendants a strong reason to settle sooner.

The Companion Survival Action

Families often file two claims at once, and confusing them is one of the most common mistakes. The wrongful death action compensates surviving family for financial losses going forward. A survival action under EPTL 11-3.2 compensates the estate for harm the person suffered before dying.⁸

The survival action can cover the deceased’s conscious pain and suffering between the injury and death, their medical bills during that period, and their lost wages up to death. Any money recovered through a survival action goes into the estate and passes under the will or intestacy rules. The same personal representative typically brings both claims in the same lawsuit. Because pain-and-suffering damages are unavailable in the wrongful death case itself, the survival claim often represents a significant portion of the total recovery when the person was conscious and suffered before dying.

How the Deceased’s Own Fault Affects the Award

New York follows a pure comparative fault rule under CPLR 1411. If the deceased was partially responsible for the fatal accident, the award is reduced by their percentage of fault but never eliminated.⁹ A jury finding the deceased 40 percent at fault cuts the award by 40 percent. Even 90 percent fault still leaves the family with 10 percent of the recovery. Many states cut off recovery once a plaintiff crosses 50 or 51 percent, so New York’s rule is more generous and makes comparative fault a central issue at trial.

How the Money Is Divided Among the Beneficiaries

After a recovery, the Surrogate’s Court oversees how the money is split among the distributees. Shares are not equal. The statute requires each person’s share to reflect the pecuniary injury that person actually suffered.⁴ A young child who would have depended on the deceased for another 15 years typically receives a larger share than an adult child who was already financially independent.

New York courts commonly apply the Kaiser formula, which bases each distributee’s share on the number of years that person would have remained financially dependent on the deceased. For a surviving spouse, the period runs for the shorter of the two life expectancies. For a minor child, it runs until age 21.¹⁰ The court holds a hearing before approving the final distribution and can adjust shares based on the evidence. When a child’s share exceeds $10,000, a guardian must be appointed to manage the funds.¹¹

Attorney Fee Caps in Medical Malpractice Cases

If the death resulted from medical malpractice, New York caps the attorney’s contingency fee on a sliding scale under Judiciary Law 474-a:¹²

30 percent on the first $250,000 recovered
25 percent on the next $250,000
20 percent on the next $500,000
15 percent on the next $250,000
10 percent on anything above $1.25 million

On a $2 million medical malpractice wrongful death recovery, the attorney’s fee under this schedule works out to $287,500, well below the $666,667 a standard one-third contingency would produce. The court can authorize a higher fee if the attorney or client applies for one, but the sliding scale is the default. Wrongful death cases outside the medical malpractice context have no comparable statutory cap, so standard contingency arrangements apply.

Taxes on the Proceeds

Compensatory damages received in a wrongful death settlement or judgment for physical injury or death are generally not taxable as federal income. The IRS treats these proceeds the same as other personal physical injury recoveries.¹³ One exception: if a distributee previously deducted medical expenses related to the deceased’s final injury and received a tax benefit from the deduction, the portion of the settlement covering those expenses must be reported as income.

Punitive damages, if awarded in a related survival action, are fully taxable regardless of the underlying claim and must be reported as other income on Schedule 1 of Form 1040.¹³ The statutory interest that accrues from the date of death is also typically treated as taxable interest income. For large awards, a tax professional should look at the allocation before any money is distributed.

The Grieving Families Act and Why the Limits Stand

New York’s ban on recovering for grief, emotional suffering, and loss of companionship has been the target of sustained legislative effort. The Grieving Families Act would have expanded both the damages available and the class of people entitled to recover, allowing “close family members” including domestic partners, stepparents, and siblings to qualify based on their actual relationship with the deceased.

The bill passed both chambers of the legislature multiple times, but Governor Hochul vetoed it in December 2025, the fourth such veto.¹⁴ For now, wrongful death recovery in New York remains limited to pecuniary losses, and only statutory distributees under the intestacy rules can share in the proceeds.

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
New York State Unified Court System. Form WD-2 – Wrongful Death Petition
3
New York State Senate. New York Estates, Powers and Trusts Law 4-1.1 – Descent and Distribution of a Decedent’s Estate
4
New York State Senate. New York Estates, Powers and Trusts Law 5-4.4 – Distribution of Damages Recovered
5
New York State Senate. New York Civil Practice Law and Rules 214-A
6
New York State Senate. New York Estates, Powers and Trusts Law 5-4.3 – Amount of Recovery
7
New York State Senate. New York Civil Practice Law and Rules 5004
8
New York State Senate. New York Estates, Powers and Trusts Law 11-3.2 – Action for Injury to Person or Property Survives Despite Death
9
New York State Senate. New York Civil Practice Law and Rules 1411 – Damages Recoverable When Contributory Negligence or Assumption of Risk Is Established
10
New York State Courts. Matter of Delmoro
11
New York State Unified Court System. Surrogate’s Court Wrongful Death Compromise Settlement Proceeding Checklist
12
New York State Senate. New York Judiciary Law 474-a
13
Internal Revenue Service. Publication 4345 – Settlements – Taxability
14
New York State Senate. New York State Senate Bill 2025-S4423