How Damages are Distributed in a Wrongful Death Lawsuit

In New York, the Surrogate’s Court will allocate the damages in a wrongful death settlement between the causes of action for wrongful death and pain and suffering.

Wrongful death and pain and suffering are two distinct claims under New York’s wrongful death law. The allocation of damages by Surrogate’s Court is based primarily upon whether the decedent sustained conscious pain and suffering prior to death. For example, the Surrogate’s Court may allocate 90% of the damages to the cause of action for wrongful death and 10% of the damages to the cause of action for pain and suffering.

The wrongful death cause of action is based upon the pecuniary loss of the decedent’s distributees, e.g., loss of financial support, loss of paternal/maternal guidance, nurturing and advice, and the pain and suffering cause of action is based the decedent’s conscious pain and suffering before death.

Only Distributees of the Estate will Receive a Distribution of Damages

In wrongful death cases, damages are distributed to the decedent’s distributees, which are those individuals who would inherit if the decedent had died without a will (known as intestate). If a party is not a distributee, they have no right to any portion of the award, even if they can prove damages.

Distribution of Damages Allocated to Wrongful Death

Once damages are allocated to wrongful death, the Kaiser formula is commonly used to calculate the distribution of wrongful death proceeds based upon the pecuniary loss suffered by the distributees. The Kaiser formula is the general rule and is followed by most courts. Matter of Kaiser, 198 Misc. 582 (Kings County 1950).

In Kaiser, the court first determines the decedent’s life expectancy and the number of years until the distributees who are minors reach the age of majority (21 years old). With regard to minor children, the Kaiser decision sets an initial limit on each child’s reasonable anticipation of financial dependence until each child turns 21 years of age. According to Kaiser, it is assumed that the decedent’s spouse could reasonable anticipate relying financially upon the decedent for the remainder of their life (by applicable life expectancy tables).

Under Kaiser, the decedent’s spouse and children under the age of 21 at the time of the decedent’s death each receive a share of the wrongful death proceeds. The amount of each share is determined by a fraction in which the denominator is the sum of the number of years of anticipated dependency of the surviving spouse plus the total number of anticipated dependency of all children under 21 at the time of the decedent’s death.

The numerator for each distributee is the number of that distributee’s years of anticipated dependency. Matter of Acquafredda, 189 A.D.2d 504, 506. The anticipated dependency period for the decedent’s spouse is the shorter of either the spouse’s own life expectancy, as measured by recognized mortality tables. The anticipated dependency period for each child is measured by the number of years from the date of the decedent’s death until the child reaches the age of 21.

In Kaiser, the life expectancy of the decedent was 25.27 years and the surviving spouse had 25.27 years of anticipated support. The decedent left a child, about 1 year old, with 20 years to reach the age of majority. By adding together 20 and 25.27, the total years of anticipated support of the surviving wife and child aggregated 45.27.

Using 45.27 as the denominator, and using the respective years of the anticipated dependencies of the surviving spouse and child as numerators, the percentage of the net amount received in settlement of the action to be allocated to the surviving spouse was .558 (55.8%), and the percentage to be allocated to the child was .442 (44.2%).

Using the Kaiser formula, the younger child will recover more than an older child. The court distributes the wrongful death proceeds based upon each distributee’s (1) date of birth, (2) age at date of the decedent’s death; (3) Prospective number of years of support; (4) Fractional shares (e.g., 48/82, 14/82); and (5) Percentage of Settlement Proceeds (e.g., 58.5%, 17.1%)

Distribution of Damages Allocated to Pain and Suffering

Once damages are allocated to pain and suffering, the distribution of the damages is determined by Estates Powers & Trusts Law section 4-1.1.

Estates Powers & Trusts Law section 4-1.1, entitled “Distribution to a decedent’s estate”:

• A spouse and issue [children], fifty thousand dollars and one-half of the residue to the spouse, and the balance to thereof to the issue by representation;
• A spouse and no issue, the whole to the spouse;
• Issue and no spouse, the whole to the issue by representation.

“By representation” means treating every member of the same class equally. This means that all children are treated equally; all grandchildren are treated equally; and all great grandchildren are treated equally, regardless of how many children their parents had. When damages are distributed to the children “by representation,” each child receives an equal share.

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