When someone dies because another person or company was careless, New York gives the family a claim. It is not an easy claim to bring, and it is not brought the way most people expect. There are rules about who is allowed to file it, a deadline that runs from the date of death rather than the date of the accident, and a set of limits on what a family is permitted to recover that surprise almost everyone who hears them for the first time.

If the death happened at work, there is a second system running alongside the first one, with its own benefits, its own deadlines, and its own forms. The two systems interact, and the way they interact can either protect a family or cost it a great deal of money depending on the order things are done in.

This page explains both. It is written for the person who has just lost a husband, a wife, a parent, or a child, and who is trying to figure out what to do next while handling everything else that comes with a death in the family.

Start with how the death happened

Almost everything that follows depends on one question: was the person working when they were killed?

If the answer is no — a car accident on the way home, a fall on a poorly maintained staircase, a death caused by medical treatment — there is one case, a wrongful death action in Supreme Court, and it is governed by the Estates, Powers and Trusts Law.

If the answer is yes, there are potentially two proceedings at the same time. A death benefits claim at the Workers’ Compensation Board, which does not require proving that anybody did anything wrong. And, in many cases, a wrongful death lawsuit against whoever caused the death other than the employer. Families are routinely told they have to pick one. That is not the law, and the section below on how the two fit together explains why.

Who is allowed to bring a wrongful death case

Not the family. This is the first thing that trips people up.

Under EPTL § 5-4.1, the case is brought by the personal representative of the estate — the executor named in a will, or an administrator appointed by the Surrogate’s Court if there was no will. A widow cannot sue in her own name. Neither can a son or a daughter. Somebody has to go to Surrogate’s Court and be appointed first, and until that happens there is no one with legal authority to file the case.

That appointment takes time, and the two-year clock is running while it happens. It is one of the reasons to get a lawyer involved early rather than after the estate is sorted out. In practice the two things get done in parallel.

The statute also requires that the person be survived by distributees — the family members the law recognizes as having suffered a loss. And whatever the case recovers does not pass under the will. It goes to the distributees directly, in proportion to what each of them actually lost, and that proportion is set by the court after a hearing rather than by the shares that would apply if the person had simply died with money in the bank. A surviving spouse who had been absent for years, or a parent who never supported the child, can be cut out of the recovery entirely under EPTL §§ 5-1.2 and 4-1.4.

There are usually two claims, not one

Most fatal accident cases contain two separate legal claims that get filed together and are easy to confuse.

The wrongful death claim belongs to the distributees. It compensates them for what the death cost them going forward.

The survival claim, under EPTL § 11-3.2(b), belongs to the estate. It is the claim the person who died would have had if they had lived, and its main component is conscious pain and suffering between the injury and the death. If somebody lived for three days in a hospital after a crash, that period is compensable. If death was instantaneous, there is usually nothing there. Because this recovery belongs to the estate rather than to the distributees, it passes under the will and it can be reached by the estate’s creditors, which the wrongful death recovery cannot.

The two claims run on different clocks, and that catches people. See the deadlines section below.

What New York allows a family to recover

This is the part of the conversation that is hardest to have, and there is no way to soften it, so here it is plainly.

EPTL § 5-4.3 allows compensation for pecuniary injuries — financial losses. New York does not permit a wrongful death recovery for grief. It does not permit recovery for sorrow, for the loss of a person’s companionship, or for the emptiness in a house that used to have somebody in it. A jury is not allowed to put a number on any of that.

What a jury can consider:

  • The financial support the person would have provided over the rest of their working life.
  • The value of the services they performed — the household work, the childcare, the things a family now has to pay somebody else to do.
  • The loss of a parent’s guidance and nurture to children who are still growing up. New York courts treat this as a financial loss, which is a legal fiction everyone involved recognizes as a legal fiction, but it is the door through which a child’s loss gets valued at all.
  • Medical and nursing expenses from the injury that caused the death, and reasonable funeral expenses paid by the family.
  • Interest on the whole recovery running from the date of death, which in a case that takes years to resolve is a substantial figure in its own right.
  • Punitive damages, where the conduct was bad enough that the person could have recovered them had they survived.

New York is one of the last states in the country still limiting families this way. A bill called the Grieving Families Act, which would add damages for grief and emotional loss and extend the filing period to three years, has passed the Legislature four times and been vetoed four times, most recently on December 5, 2025. Another version was introduced in May 2026 and remains in committee. As of September 2026, the pecuniary-loss rule described above is still the law. If that changes, it will change the value of these cases significantly, and it will not change them retroactively.

When the death happened at work: the death benefits claim

If someone is killed on the job or dies from an occupational illness, their family is entitled to workers’ compensation death benefits. This claim does not require proving anybody was negligent. It does not matter whether the worker made a mistake. It matters only that the death arose out of and in the course of employment.

Who receives the benefits

A surviving spouse, and children under 18 — or under 23 if they are enrolled full time in an accredited school. A child who is physically or mentally disabled can continue to receive benefits past those ages. If there is no surviving spouse and no qualifying child, dependent parents or grandparents may qualify.

How much

Two-thirds of the worker’s average weekly wage, divided among those entitled to it, subject to the maximum weekly benefit rate. A surviving spouse receives payments for life, ending on remarriage — and a spouse who remarries receives a lump sum equal to two years of benefits at that point rather than simply losing them.

One point that causes real confusion: the maximum rate is fixed by the date of the injury, not by the date the claim is decided or paid. The Board raises the maximum every July. A family whose loss happened several years ago is measured against the older, lower cap, and no amount of delay in deciding the case changes that.

Funeral and burial expenses

The Board sets a schedule. For a death in Richmond, Kings, New York, Queens, Bronx, Nassau, Suffolk, Rockland or Westchester county, the maximum is $12,500. Everywhere else in the state it is $10,500. The schedule that applies is the one in effect on the date of death. Those limits do not apply where a firefighter or a police officer dies from injuries received in the line of duty, in which case reasonable funeral expenses are payable.

Where there are no dependents

A worker with no surviving spouse, children, or dependents is not outside the system. Where no one qualifies for weekly benefits, $50,000 is payable to the worker’s surviving parents, or if there are none, to the estate.

The deadline

A death claim must be filed with the Board within two years of the death, not two years of the accident. That distinction matters enormously where someone was injured at work, lived for a period afterward, and then died of the injury or of the illness that caused it. Written notice to the employer is supposed to be given within thirty days of the death, but that requirement is forgiving in practice — it can be excused where the employer already knew, or where there was no prejudice. The two-year filing deadline is not forgiving.

When the death happened at work: the case against everyone who is not the employer

Workers’ compensation is the exclusive remedy against the employer. Section 11 of the Workers’ Compensation Law says so in terms that reach the estate, the personal representative, and the distributees by name. A family cannot sue the employer for causing the death, and in most cases cannot sue a co-worker either.

That bar does not extend to anybody else. On a construction site there are usually several companies present that are not the deceased worker’s employer — the owner of the building, the general contractor, other subcontractors, the company that supplied or maintained the equipment. Section 29 of the same statute allows the family to collect death benefits and sue those parties. There is no election to make.

Construction deaths and the Labor Law

Where a worker is killed by a fall from a height, or by something falling on them, Labor Law § 240 places the duty on the owner and the general contractor, and it is a duty they cannot delegate to anybody else. That claim survives the worker’s death and is brought by the personal representative. It is frequently the most valuable part of a work-death case, because it does not depend on proving the owner or contractor was careless in the ordinary sense, and the worker’s own conduct does not reduce it. Section 241(6) and the Industrial Code regulations do similar work for other kinds of site hazards.

One structural point that changes how these cases settle: Section 11 lets a third party that gets sued bring the employer back into the case for contribution, but only where the worker suffered a “grave injury.” Death is the first item on that list. So in a fatality, that threshold is met automatically, and the owner and general contractor can pull the employer in. This is different from how a non-fatal injury case behaves, and it affects the negotiating posture of everyone at the table.

The carrier’s lien, and the mistake that destroys benefits

The compensation carrier that has been paying death benefits has a lien on whatever the third-party lawsuit recovers. The lien is reduced by the carrier’s fair share of the attorney’s fees and costs that produced the recovery — the statute says those expenses are to be “equitably apportioned,” and in a death case, where the carrier’s future exposure can actually be calculated, that apportionment can extend to the future benefits the carrier is relieved of paying rather than only the past ones. After the lien is satisfied, the family’s net recovery operates as a credit against future benefits, and the carrier’s payments pause until the credit is used up.

Here is the part that has to be handled correctly. Before a third-party case is settled, the compensation carrier must give written consent, or a compromise order must be obtained from the judge presiding over that lawsuit. A family that settles without one or the other forfeits its future death benefits. Not reduces them — forfeits them. A weekly payment to a widow and her children, gone, because a release was signed in the wrong order.

There is a three-month window in which to secure the approval after a settlement is marked, and there is a way to ask a court for approval after the fact, but late approval is discretionary. A court will consider whether the settlement was reasonable, whether the delay was the family’s fault, and whether the carrier was prejudiced by it. Applications made after long, unexplained delays get denied.

There is also a trap running the other way. If the third-party lawsuit is not started within six months of the compensation award, and in any event within thirty days after the carrier demands in writing that it be started, the claim is assigned to the carrier by operation of law. The family loses control of its own case.

Does taking comp reduce the lawsuit?

No. The defendant in the lawsuit does not get a discount because the family received compensation benefits. New York’s collateral source rule excludes payments that carry a statutory right of reimbursement, and the carrier’s lien is exactly that. The practical effect is that compensation functions as an advance against the third-party case rather than a subtraction from it. The carrier is made whole out of the recovery and the family keeps the difference.

When the death did not happen at work

There is no compensation claim, no lien, and no carrier to get consent from. There is one lawsuit, brought by the personal representative, and everything in the sections above about who may sue, what may be recovered, and how the recovery is divided applies.

The common categories on Staten Island and in Brooklyn are motor vehicle collisions, falls on badly maintained property, deaths caused by medical treatment, and nursing home cases. Each has its own proof problems. What they share is that the evidence is best collected early, while a vehicle still exists, while a sidewalk defect is still there to be photographed, while the people who saw what happened still remember it.

The deadlines, in one place

  • Wrongful death claim: two years from the date of death. Not from the accident.
  • Survival claim: the later of three years from the injury, or one year from the death. Different clock, same lawsuit. Where a person is injured and dies two and a half years later, it is entirely possible to have a live wrongful death claim and a dead survival claim.
  • Workers’ compensation death claim: two years from the date of death.
  • If the defendant is the City, a public authority, NYCHA, or a school district: a notice of claim within ninety days. In a wrongful death case those ninety days run from the appointment of the estate’s representative, not from the death. This is worth knowing, because families who assume they have missed it usually have not.
  • Suing a municipality: two years from the death for the wrongful death claim, but one year and ninety days for the survival claim. The survival claim expires first, and a complaint filed at twenty-two months can preserve one while losing the other.

One exception worth knowing about, because it revives cases people have written off: where a criminal prosecution was brought over the same event, the personal representative has at least one year from the end of that prosecution to file, even if the ordinary two years has already run out.

One open question about fatal car accidents

New York changed its comparative fault rule for motor vehicle cases effective May 26, 2026. In a personal injury case governed by the no-fault law, an injured person who is more at fault than the other driver now recovers nothing, where previously their share simply reduced the award.

Whether that bar applies to a wrongful death claim is not settled. The new subsection speaks only of “personal injury,” while the subsection right above it names personal injury, property damage, and wrongful death separately — and a related provision in the same legislation expressly carves out actions for injuries resulting in death. There is no decision construing it yet. Anyone telling a family with certainty how this applies to a fatal crash is guessing. It is a question to raise early, because it affects how a case is valued and how fault gets litigated.

Frequently asked questions

Can I file a wrongful death case myself as the spouse?

Not in your own name. The case has to be brought by the personal representative of the estate, appointed by the Surrogate’s Court. A surviving spouse is very often the person who gets appointed, but the appointment has to happen first, and the two-year deadline runs while it is pending.

Do we have to choose between workers’ compensation death benefits and a lawsuit?

No. You cannot sue the employer, but you can collect death benefits and sue anyone else who caused the death at the same time. The compensation carrier will have a lien on the lawsuit’s recovery, and it has to consent before that case settles, but there is no choice to make between the two.

Can we recover for our grief?

Not under New York law as it stands in September 2026. The wrongful death statute compensates pecuniary injuries, meaning financial losses. Grief, sorrow, and loss of companionship are not recoverable. Legislation to change this has been passed and vetoed four times, most recently in December 2025.

My husband died three months after the accident. Which deadline applies?

Both, to different claims. The wrongful death claim runs two years from the date of death. His own claim for what he went through between the accident and his death runs three years from the accident, or one year from the death, whichever is later. They are filed in the same lawsuit but they expire at different times.

How much does the compensation carrier take out of a settlement?

Less than the full amount it paid. The carrier’s lien is reduced by its fair share of the legal fees and expenses that produced the recovery, and that share is apportioned equitably rather than by a fixed formula. In a death case, where future benefits can be calculated, the carrier’s share of the cost of the relief it is getting from those future payments can be accounted for as well.

Is it too late if the City was involved and it has been more than ninety days?

Often not. In a wrongful death case the ninety days for a notice of claim runs from the appointment of the estate’s representative, not from the date of death. Families who have not yet been to Surrogate’s Court frequently still have time. Even where the period has run, a court can allow a late notice in some circumstances. It is worth asking rather than assuming.

Who actually gets the money?

The wrongful death recovery goes to the distributees in proportion to what each of them lost financially, as determined by the court after a hearing. It does not pass under the will and it is not divided the way an estate is divided. The survival recovery, for the pain and suffering before death, does belong to the estate and does pass under the will.

Talk to a Staten Island wrongful death attorney

These cases are built out of records that are easiest to obtain in the first weeks — the accident report, the site photographs, the employer’s file, the medical records from the hospital, the names of the people who were there. They also depend on steps being taken in the right order, particularly where compensation benefits and a lawsuit are running at the same time.

This office handles both sides of a work-related death, the compensation claim and the third-party case, which is the reason the two stay coordinated rather than one quietly damaging the other.

The Law Offices of Frank J. Dito, Jr. represents families in Staten Island and Brooklyn. Call 718.701.2776 (toll-free: 800.310.5520) or contact us for a free consultation. Consultations are free and there is no fee unless you win.

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