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What Happens After Your Wrongful Death Lawsuit is Resolved

Wrongful Death

In New York, there are 3 steps that must be taken before you can receive your portion of the settlement proceeds.

Step #1: Court Approval of the Settlement

In New York, wrongful death settlements must be approved by the court. Court approval of the settlement requires a motion to the court. You will be asked to review and sign an affidavit that sets forth the terms of the settlement and your consent to the settlement.

You will also be provided with a Settlement Statement that sets forth the expenses of the lawsuit, the legal fee, any liens (e.g., Medicaid, Medicare) and your net settlement proceeds, after payment of expenses, liens, and the legal fee.

The court will issue an Order approving the settlement and transferring your case to the Surrogate’s Court in the county where the legal representative of the estate was appointed. The legal representative of the estate is known as the executor/executrix when there is a Last Will and Testament, and the administrator/administratrix, when there is no Last Will and Testament.

Step #2: Signing of the General Release and Stipulation of Discontinuance

Once the court issues an Order approving the settlement, you will sign a General Release Agreement that releases the settling defendant(s) in exchange for payment of the settlement. We will then send a letter to the defendants’ attorneys with the General Release Agreement, a Stipulation of Discontinuance and a copy of the court Order approving the settlement.

Upon their receipt of these documents, defendants’ attorneys will have twenty-one (21) days to mail the settlement check to our law firm. If the defendants’ attorneys do not timely mail the settlement check, our law firm will enter a Judgment against the defendants for the amount of the settlement, plus interest, costs and disbursements.

Upon receipt of the settlement check, we deposit the check in our firm’s escrow account, or subject to approval of the court, an interest-bearing savings account that is fully FDIC insured (known as a CDARS account). Your portion of the settlement funds will remain in the escrow account (or, when applicable, CDARS account), until the Surrogate’s Court issues a Decree (a/k/a, Court Order) allocating and distributing the clients’ net settlement proceeds.

Step #3: Allocation and Distribution of the Client’s Net Settlement Proceeds

With rare exceptions, Surrogate’s Court will determine how the clients’ net settlement proceeds are distributed among the distributees of the estate. The distributees of the estate are usually the surviving spouse and children, but this can vary.

First, the Surrogate’s Court will determine how the settlement proceeds should be allocated between the claims for wrongful death and pain and suffering.

In a wrongful death lawsuit, the distributees of the estate have their own individual right to recover for their pecuniary losses, e.g., loss of financial support, loss of maternal/paternal guidance, nurturing, and advice. This claim is known as the wrongful death cause of action.

In most wrongful death cases, there is also a claim for the decedent’s conscious pain and suffering prior to death. The Surrogate’s Court might, for example, allocate 90% of the settlement to the wrongful death claims and 10% to the claim for conscious pain and suffering.

Second, the Surrogate’s Court will determine how the settlement proceeds will be distributed among the distributees of the estate.

When the decedent dies without a Last Will and Testament, the distribution of the settlement proceeds is based upon a mathematical formula known as the “Kaiser” formula. When the decedent dies with a Last Will and Testament, the settlement proceeds will be distributed in accordance with the decedent’s Last Will and Testament.

The Surrogate’s Court will issue a Decree setting forth the allocation and distribution of the clients’ net settlement proceeds. Upon issuance of the Decree, our law firm issues a check to each distributee in accordance with the terms of the Decree.

Call a wrongful death attorney for more information.