How Wrongful Death Actions Affect Probate: A Guide for New York Families

When a person who holds an estate dies due to the negligence of another, the estate’s beneficiaries can file wrongful death or survival action in court to receive financial compensation. If you or someone you love has been affected by a wrongful death, here is what you need to know to start legal proceedings.

Legal Basis for Wrongful Death Actions

Wrongful death probate cases are covered in the law called “New York Consolidated Laws, Estates, Powers and Trusts Law – EPT § 5-4.1 Action by personal representative for wrongful act, neglect or default causing death of decedent.”

This statutory code grants the representative of a deceased person who is survived by beneficiaries or heirs of an estate the authority to file an action to recover damages for a wrongful act. Such acts may include neglect or what are known as “default” omissions to act which have been cited as the cause of the decedent’s death. For details about the legal basis for wrongful death action, contact a New York probate attorney.

Wrongful Death Actions & Survival Actions

Types of detriments caused to survivors considered in a wrongful death lawsuit may include financial losses and other forms of detriment and distress. Actions pertaining to wrongful death lawsuits are governed by the law of the state jurisdiction where the death in question occurred; in the case of survival actions, laws of the state where the person who has suffered detriment resides determine legal action.

A survival action recovers for a decedent’s injuries as if he or she was still alive, according to New York tort law. Damages awarded are calculated according to the total amount of losses between the exact time of injury and the time of death. Wrongful death actions and survival actions are taken separately; survival actions compensate an estate for the decedent’s pain and suffering, as well as any lost earnings until the time of death. When someone has died instantaneously through negligence, the estate is entitled to file action for pain and suffering.


Reasons a New York court might award monetary compensation for wrongful death include “loss of companionship” or other claims of hedonic value (reasons relating to quality of life). Because a decedent is unable to personally recover from injury, survival claims by the person’s estate are actions on behalf its beneficiaries. Damages are distributed to the heirs mentioned in the will or equally among family members in cases where a will does not exist according to state laws. The difference between damages awarded in wrongful death and survival actions is that proceeds from a wrongful death action are not treated as taxable income by the IRS, but survival action proceeds are taxable.


Survival action claims must be filed in court as part of the probate process. If a written will is executed prior to death, damages pass to a decedent’s estate with no further action required, as stated in laws of intestacy. When there is a written will, wrongful death damages are distributed directly to the beneficiaries rather than to an estate.

For help navigating the probate process, contact Queens probate lawyer Richard Cary Spivack, and proceed with confidence.