What Happens When a Wrongful Death or Survival Action is Filed on Behalf of a Decedent’s Estate?

When an estate holder dies as result of a circumstance of intentional or unintentional negligence of another, the beneficiaries of the estate can file wrongful death or survival action in court for due compensation.  


“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” statutory code provides the duly appointed, personal representative of a decedent who is survived by beneficiaries or heirs of an estate, the authority to file an action to recover damages for a wrongful act. Wrongful acts include “neglect” or “default” omissions to act cited as cause-in-fact of the decedent’s death. Actions filed against a person alleged to be the liable party to the decedent prior to the act causing death, can be sued for reason of such wrongful conduct.  


Wrongful Death Actions

Laws to wrongful death lawsuits are strictly governed by the law of the state jurisdiction where the negligence causing the death of the decedent occurred; or in the case of survival actions, where the distributee who has suffered detriment resides. Both financial and nonfinancial detriments caused to survivors may be considered in a wrongful death lawsuit.


Survival Actions

New York tort law stipulates that a survival action recovers for a decedent’s injuries as if he or she was still alive. Damages assigned survival actions are awarded to an estate are calculated according to the total sum of losses from exact time of injury, to the time of death. Survival actions are separate from wrongful death actions. Survival actions compensate heirs or an estate for a decedent’s pain and suffering, as well as lost earnings to the time of death. Where a deceased has died instantaneously as result of negligence, the estate is entitled to file action for pain and suffering.



According to laws of intestacy, if a written will is executed prior to death damages pass to a decedent’s estate, automatically. Where a written will exists, wrongful death damages are distributed directly to the beneficiaries, rather than to a decedent’s estate. Survival action claims are not automatic and must be filed in court as part of the probate process.



New York courts award monetary compensation for wrongful death claims for “loss of companionship” or other claims of hedonic value. Since a decedent is not able to personally recover from injury, survival claims by a decedent’s estate are actions on behalf its beneficiaries, distributed to the heirs mentioned in the will or equally among family member distributees in cases where a will does not exist. Proceeds from a wrongful death action are not treated as taxable income by the U.S. federal Internal Revenue Service (IRS), but survival action proceeds are taxable.


Contact a Probate Attorney

Ettinger Law Firm is a licensed New York attorney practice specializing in probate litigation matters. Contact Ettinger Law Firm to discuss filing a wrongful death or survival action lawsuit.

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