Content reviewed by:
Alex Shulman
Who can bring a survival action in New York depends on the legal appointment of a personal representative for the deceased’s estate.
A survival action allows the estate to seek compensation for damages suffered by the deceased before their passing, such as your loved one’s end-of-life medical expenses, lost income, and pain and suffering. This type of claim differs from a wrongful death claim, as it focuses on the rights of the deceased rather than the family’s losses.
A wrongful death lawyer in New York from Shulman & Hill can guide personal representatives through this process.
How Does a Survival Action Differ from a Wrongful Death Claim in New York?
Survival actions and wrongful death claims are separate legal avenues that families may Survival actions and wrongful death claims in New York are distinct legal remedies that address different aspects of loss following a person’s death. While both are typically filed together, they differ in purpose, compensation types, and beneficiaries, as outlined in the state’s statutes.
A personal injury lawyer in New York from Shulman & Hill can help your family determine which path to take after your loved one’s passing.
Survival Actions
A survival action, as governed by New York Estates, Powers and Trusts Law (EPTL) § 11-3.2(b), allows the deceased’s estate to seek compensation for damages the deceased person suffered before their death.
Potential recovery includes pain and suffering your loved one endured, medical expenses incurred prior to death, and lost wages during the period between the injury and passing.
Recovery from a survival action becomes part of the deceased’s estate and is distributed according to the will or, if no will exists, under New York’s intestacy laws, per EPTL § 4-1.1.
Wrongful Death Claims
In contrast, a wrongful death claim, covered under EPTL § 5-4.1, is brought on behalf of the deceased’s family to recover compensation for their own financial and emotional losses associated with your loved one’s death, such as funeral and burial expenses, loss of financial support or inheritance, and loss of guidance, care, or companionship.
Damages from a wrongful death claim are awarded directly to the surviving family members, not the estate, and are distributed according to their financial dependency and relationship to the deceased.
How a Lawyer From Shulman & Hill Can Help You File a Survival Action
Survival actions are legal claims filed to recover damages. A lawyer from Shulman & Hill can review your loved one’s estate documents and determine who has the proper legal authority to file the claim. They can assist with their appointment through the Surrogate’s Court, if necessary.
Once authority is established, a lawyer helps build a case by gathering evidence of negligence and damages, such as medical records, witness statements, and expert testimony, to prove the damages suffered by the deceased before death.
Later in the process, lawyers negotiate with insurance companies or defendants, working to prevent them from undervaluing the estate’s losses. If necessary, a wrongful death attorney can seek recovery and advocate for your family in court, working to safeguard the legal rights of your loved one’s estate and beneficiaries throughout the process.
The Personal Representative’s Role and Responsibilities in Managing and Distributing Funds
In New York, the personal representative of the deceased’s estate manages settlement funds from a survival action, acting as the legal administrator of the estate and being responsible for ensuring that all funds are handled and distributed in compliance with New York law.
Handling Incoming Settlement Funds
Any financial settlement or judgment from a survival action has to be paid directly to the estate instead of individual family members. The personal representative must deposit these funds into the estate’s account, keeping them separate from personal accounts to avoid legal issues. A lawyer from Shulman & Hill can help with settlement funds.
Paying Debts and Obligations
Before distributing funds to beneficiaries, the personal representative must settle any outstanding debts or obligations of the estate. This includes:
- Paying unpaid medical bills related to the deceased’s final injury or illness.
- Resolving funeral and burial expenses.
- Satisfying any creditor claims or liens, such as personal debts or outstanding taxes owed by the deceased.
In cases where debts exceed the estate’s assets, New York law determines the order in which creditors are paid, often leaving little or no funds for distribution to heirs.
Court Oversight and Accountability
The personal representative must keep accurate and detailed records of all financial transactions related to the estate, including payments and distributions. In most cases, a final accounting is required by the court to confirm that the estate’s assets were managed and distributed properly. This step ensures transparency and compliance with the legal requirements before the estate can be officially closed.
Call Shulman & Hill to Learn Who Can Bring a Survival Action in New York
At Shulman & Hill, we understand how overwhelming it can be to handle a legal claim while managing the responsibilities of an estate. With over 200 years of combined legal experience, we bring the knowledge and commitment needed to guide you through every step of the process.
Whether it’s filing a survival action, managing debts, or distributing settlement funds, we’re here to ensure nothing gets overlooked and that your loved one’s estate is handled properly.
Let us help you pursue the justice and compensation the estate deserves. Contact us today for a free consultation. We’re ready to put our experience to work for you and your family.