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Contesting a Wrongful Death Compromise

When someone dies due to the negligence or willful act after of another person or entity, the decedent’s personal representative has the right to file a wrongful death lawsuit against the person or entity responsible for the death. Should they prevail, the sums awarded would be part of the decedent’s estate. Part of the wrongful death settlement process is a compromise proceeding. EPTL 5-4.6 During the proceeding, the Surrogate’s Court determines how the damages that were awarded in the wrongful death lawsuit are classified and distributed. They can be classified as wrongful death damages, personal injury damages, or a combination of both. This determination is critical as it will impact how the damages are distributed. It is not surprising that in some instances there are those who are unhappy with the classification of damages. If you are a dissatisfied with the wrongful death compromise, contact an experienced New York probate litigation lawyer at the Law Offices of Stephen Bilkis & Associates. With our decades of experience, we can help contesting a wrongful death compromise.

Wrongful Death Awards

There are specific rules related to who is entitled to receive the proceeds from damages that are determined to be “wrong death” awards. No matter how deep the emotional loss may be to extended family, wrongful death awards are only available to distributees. EPTL 4-1.1 and 5-4.4. These are the family members who suffered “pecuniary loss” because of the death. Typically, only the spouse and minor children would fall into that category as they would be the people who relied on the decedent for financial support. Grandchildren might be able to recover if they can show that they relied on the deceased grandparent for financial support. An experienced New York probate litigation lawyer can help determine who would be eligible to receive wrongful death benefits in your case.

Once the court determines who is entitled to wrongful death proceeds, the court must decide how the money is to allocated among them. The court can choose to allocate the money based on the age of the recipients and the amount of financial support they will need. See Matter of Kaiser, 198 Misc 582 (Kings Sur 1950). The court can choose another way to allocate in order ensure an equitable result.

Note that damages classified as “wrongful death” proceeds are not subject to creditors’ claims, even if the estate would not otherwise have enough to pay all outstanding claims. In other words, wrongful death monies are not added to a decedent’s probate estate. If you are a creditor seeking payment for a debt owed by the estate, discuss options for contesting the wrongful death compromise with a probate litigation attorney in New York.

Personal Injury Awards

On the other hand, damages attributable to personal injury and pain and suffering are added to the decedent’s probate estate because it would have been the decedent who suffered the loss (as opposed to those whom the decedent cared for financially). As part of the decedent’s probate estate, personal injury awards are distributed with the rest of probate estate assets based on the terms of the will or on New York’s rules of intestate succession. They are also subject to creditor’s claims.

Contesting a Wrongful Death Compromise

Interested parties have the right to challenge the allocation of a wrongful death compromise. Typically, the compromise proceeding occurs as part of an accounting where the personal representative reports how assets of the estate will be distributed. As part of the accounting the personal representative would indicate how the wrongful death proceeds are classified and allocated. Interested parties would have the right to object.

For example, if the allocation is 100% wrongful death, then a creditor might object and make an argument that a portion should be allocated to personal injury because the decedent experienced conscious pain and suffering. The creditor’s attorney would have to produce medical records or other evidence to support their position. If the creditor prevails, there would be a better chance that their claim would be paid by the estate, particularly if the estate otherwise had few assets.

If a portion is allocated to personal injury, a distribute might object and argue that 100% should be allocated to wrongful death. Their argument might be that because the death was immediate, there was no conscious pain and suffering.

Contact the Law Offices of Stephen Bilkis & Associates

If you concerned about the allocation of a wrongful death compromise, contact an experienced probate litigation attorney serving New York at the Law Offices of Stephen Bilkis & Associates to discuss your concerns. We have years of experience representing creditors, beneficiaries, heirs, and fiduciaries in disputes related to wrongful death, creditors’ claims, probate, and other estate issues. Contact us at 1-800-NY-NY-LAW (1-800-696-9529) to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Manhattan, Nassau County, Queens, Staten Island, Suffolk County, Bronx, Brooklyn, Long Island, and Westchester County.

Client Reviews
Mr. Bilkis handled both my father and mother's estate issues through very difficult times he was compassionate kind and understanding. In fact the whole firm showed great empathy. Despite the emotional hard time we were having that quickly and efficiently handle all the matters that were necessary to get us the result we desired. Can't recommend them enough. B.B.
From the very first phone call to Stephen Bilkis' office, the staff was extremely polite and helpful in assisting me. Mr. Bilkis was honest and upfront with me from the beginning in what he projected the outcome of my case would be; in the end we got better results than either of us anticipated. He was very genuine and compassionate in understanding my situation and how this legal matter could effect not only myself but my family as well. I highly recommend this law firm and will most definitely continue using them for any future legal needs. Jarrett
Stephen has handled numerous estate matters, criminal matters and family court matters effectively and with a goal-oriented approach. He gets great results and is a results-oriented attorney. Dustin