Common Wrongful Death Accidents
- Motor vehicle accident
- Pedestrian accident
- Medical malpractice
- Workplace accidents
New York State Wrongful Death Statute:Economic Portion of the Presumed Award
Damages are distributed to those eligible to recover under intestate law, in proportion to their pecuniary loss, except that when there
is a surviving spouse and parents, but no children (or grandchildren), the parents will also recover in proportion to their pecuniary
loss. Pecuniary loss is defined by the New York Wrongful Death statute and cases interpreting the statute.
See N.Y. Est. Powers & Trusts Law § 5-4.1 (McKinney 2002)
Priority Under Intestate Laws
- A spouse and no children-- the whole to the spouse.
- A spouse and children-- $50,000 and 1/2 of the
balance of the estate to the spouse, and the
remainder divided equally among the children
as long as they are in the same generation.
- Children and no spouse -- the whole to the children, divided equally as long as they are in the same generation.
- One or both parents and no spouse and no children -- the whole to the surviving parent or parents.
- Parent’s children (brothers, sisters, or their children) and no spouse, children or parent -- the whole to the parent’s children, divided equally as long as they are in the same generation.
See N.Y. Est. Powers & Trusts Law § 4-1.1(McKinney 2002)
When there are Children of Different Generations
In New York, a share is set aside for each surviving child of the closest generation to the victim where there are survivors, and those survivors receive equal shares. An equal share is also set aside for each deceased member of the first generation who left behind children.
Those shares are combined and distributed in equal shares to all the members of the next generation. The New York Practice Commentary gives the following example:
Assume that an intestate victim with a net estate of $450,000 is survived by a husband and four children, A, B, C, and D. Her husband gets $50,000 plus one -half of the residue ($200,000), and the children get the rest in equal shares ($50,000 each). If A predeceases the victim, leaving Grandchild-1, Grandchild-2, and Grandchild-3, they share his $50,000 equally ($16,667 each). If B also predeceases the victim, leaving
Grandchild-4 and Grandchild-5, the five grandchildren take $20,000 each (one-fifth of the $100,000 of A and B).
See N.Y. Est. Powers & Trusts Law § 4-1.1(McKinney 2002) (Practice Commentary)