The death of someone who is close to you can be emotionally devastating. The emotional impact of that death is especially traumatic when it was caused by another person’s negligence or malfeasance.
The wrongful death attorneys at Kantrowitz, Goldhamer & Graifman have prepared this brief guide to help anyone who is experiencing that emotional trauma to determine if they can bring a suit against the negligent party.
A wrongful death claim is not the same as a survival action
The decedent’s family members will typically initiate a wrongful death lawsuit to recover the financial losses they suffer as a result of their loved one’s death. Survival actions are intended to recover the decedent’s medical expenses and to provide compensation for his or her pain and suffering prior to his death. The two actions might overlap to the extent that they require proof of similar matters to justify a damages award, but the damages awarded in each action will be different.
Who is eligible to file for a wrongful death?
The decedent’s spouse and his or her minor children will generally be part of a wrongful death lawsuit. Nieces and nephews, adult children, grandchildren, and other persons who relied on the decedent for financial support may also have causes of action for wrongful death.
Any damages awarded will be based on elements such as the financial support and the value of household services provided by the decedent over his or her lifetime, funeral and burial expenses, and the value of the decedent’s companionship and parental or other skills that are lost as a result of his or her death. The individuals who incur these expenses and who suffer these losses are generally eligible to bring a wrongful death lawsuit.
Personal representative may be appointed
A probate court will first appoint that representative based on the decedent’s will or other estate plan, and then that representative will have the authority to proceed with the wrongful death action. In both New York and New Jersey, a wrongful death lawsuit must be filed within two years of the decedent’s death. Any delays in a probate court’s appointment of a personal representative can create a risk that this two-year deadline will not be satisfied. The decedent’s family members should therefore be careful not to delay the initiation of the probate process.
Damages awarded will go to the decedent’s estate
Multiple parties may be entitled to different amounts of wrongful death damages. The court will consider factors such as the age of the persons who were financially dependent on the decedent, the state of their physical and mental health, their educational level and whether they are entitled to compensation for further education, other means of support available to them, and other relevant legal and equitable factors. Attorneys well-versed in wrongful death actions will provide the best guidance on the dispursment of funds.
Insurers generally have no claim for wrongful death damages
Insurance companies that paid out compensation for a decedent’s medical expenses may well have a claim for reimbursement from damages awarded in a survival action, but they will not have an analogous claim against wrongful death damages.
Legal guidance in New York and New Jersey
A wrongful death can occur as a result of medical malpractice, negligent driving, excessive use of force by law enforcement authorities, and a host of other causes. The attorneys at Kantrowitz, Goldhamer & Graifman represent family members in wrongful death lawsuits throughout Bergen County, NJ and Rockland County, NY.
For sound legal guidance in sensitive wrongful death matters, we invite you to reach out for a private consultation today.