Losing a family member or loved one in an accident is painful. There is probably a lot on your mind in the days and weeks following your loss. In addition to dealing with grief, you may be facing financial challenges as a result of your loss. A monetary recovery can never be adequate compensation for the death of a loved one. However, it can help you through the difficulties of covering costs and living expenses after a family member’s death. A New York wrongful death attorney can help you recover for your loss.
What Is a Wrongful Death?
Wrongful death occurs when someone’s negligent or intentional act causes another person’s death. For example, deadly car accidents caused by a negligent driver can give rise to a claim for wrongful death. Other potential causes include medical malpractice, construction accidents, and assault.
Sometimes, wrongful death results from an employer’s failure to maintain a safe work environment. In that case, the employee’s loved ones may be entitled to death benefits under NY workers’ compensation law.
The New York wrongful death attorneys at Ginsberg & Caspi are ready to help you determine whether you have a claim. We can also discuss the likelihood that you will be able to prove your claim and recover damages.
To successfully bring a wrongful death action, you must present sufficient proof that another party’s negligent or wrongful action caused an accident. Our attorneys have experience with a variety of wrongful death cases and will know what evidence will be strong enough to negotiate a settlement or win at trial.
Who Can Bring a Wrongful Death Claim?
New York has specific restrictions on who can bring a wrongful death claim. Only the personal representative of the deceased person’s estate can bring a claim for wrongful death.
If the deceased had a will, the will most likely names a personal representative, sometimes called an executor. The will may not use these exact words, but any person designated to carry out the instructions and wishes expressed in the will is the personal representative. This is the individual who must initiate a wrongful death claim.
If there is no will, or if the will does not designate a personal representative, the probate court will appoint one. Each state uses a different priority list to determine which of the deceased’s surviving relatives to appoint as representative.
In New York, the first priority goes to a surviving spouse of the deceased. If there is no surviving spouse, the oldest of any adult children will be appointed personal representative. Next priority goes to adult grandchildren, then parents of the deceased, followed by adult siblings.
Determining who the personal representative is can require the help of a NY wrongful death lawyer. Sometimes wills are hard to interpret or may be subject to challenges.
A skilled attorney can help you determine whom a will appoints as personal representative. If there is no will, an attorney will be able to tell you who will likely be appointed as representative. Sometimes the named person will be unable to act as the representative.
Factors such as age or competence can affect a court’s decision about who to appoint to represent the estate.
Questions You May Wonder?
How will the pandemic effect my case? With the worldwide pandemic, a number of industries have been negatively impacted, both in the short term and the long term. The Court system was not spared. Simply said, the pandemic caused a slowdown of the Court system that we have never witnessed. Our pledge is to keep you updated as to the status of your case and what you can expect.
As a family member, you may not be able to bring a wrongful death claim, but that does not mean you cannot recover for the loss of your loved one. The claim that the personal representative brings can seek recovery for losses suffered by family members such as a surviving spouse or children.
The personal representative will hold any damages award in trust and eventually distribute it among the family members who actually suffered the losses.
New York awards damages for both the financial and other losses associated with the death of a loved one. Recovery for financial losses can include damages awards for:
- Medical expenses incurred by the deceased or their family prior to death;
- Funeral expenses;
- Future lost wages;
- Lost benefits;
- Lost inheritance of surviving children; and
- Lost wages between the deceased’s injury and death.
These damages compensate surviving family members for monetary expenses they had to incur or for income they lost as a result of the responsible party’s negligence. New York also permits recovery for non-financial losses such as:
- Services and support provided by the deceased to family members;
- The surviving children’s loss of parental support; and
- The deceased person’s pain and suffering prior to death.
If a long period of time has passed between death and the date of recovery, courts will award interest on all damages. Experienced New York wrongful death lawyers will be able to tell you which of your expenses and losses are recoverable.
The personal representative must file a wrongful death claim within two years of the deceased’s death. A court will very likely dismiss a claim that is filed after this deadline has passed.
While some states will extend the two-year time limit if the personal representative is unable to bring a claim because of age or mental capacity, New York does not.
In these cases, the guardian of the personal representative must bring the claim within the two-year statute of limitations.
Hiring a New York wrongful death attorney will greatly increase your chances of filing a successful claim. While you do not need to hire an attorney to bring a claim, it is a smart decision in most situations.
An experienced lawyer will know the New York negligence laws and how they apply to your situation. Firm knowledge of the law is particularly important in wrongful death and other personal injury cases because no two claims are exactly alike.
An NY wrongful death lawyer with in-depth knowledge of the law will be able to better determine how it applies to the specific facts of your case.
Depending on how your loved one’s death occurred, you may be filing a claim against a responsible party with the resources to hire its own attorney.
For example, if you are suing your loved one’s former employer, they may be a company with deep pockets and the ability to hire an expensive lawyer. If the responsible party has a lawyer and you do not, you are at a significant disadvantage for proving your claim.
You can also be at a disadvantage during settlement negotiations as your opponent’s attorney may be more likely to pressure you to accept a low settlement offer if you are unrepresented.