That depends.

In New York, there are two types of claims in a wrongful death lawsuit. The first claim is known as “pain and suffering” and the second claim is known as “wrongful death”. The money in a wrongful death lawsuit is divided based upon the Court’s or jury’s allocation of the money between the “pain and suffering” and the “wrongful death” claims.

How are Damages divided for “Pain and Suffering”?

A claim for “pain and suffering” allows the decedent’s Estate to recover for the conscious pain and suffering of the decedent before death. If the decedent had conscious pain and suffering before death, his/her Estate can recover for this element of damages.

Damages for “pain and suffering” are divided according to the decedent’s Last Will and Testament. If the decedent left all of his property to his surviving spouse, then the spouse recovers all of the money that is allocated by the Court or jury for “pain and suffering.

If the decedent died without a Last Will and Testament, then the damages for “pain and suffering” are allocated according to New York’s law of intestacy, pursuant to New York’s Estates Powers and Trusts Law (EPTL). In most cases, this means that the damages are divided between the surviving spouse and children.

How are Damages divided for “Wrongful Death”?

Damages for “wrongful death” are divided based upon the “pecuniary interest” of the “distributees” of the Estate, under New York law. “Distributees” are those persons designated by New York’s Estates Powers and Trust Law as persons qualified to recover money for wrongful death and these persons are typically the surviving spouse and children of the decedent.

There is no hard and fast rule as to how the money is divided among distributees in a wrongful death case in New York. The damages are divided according to the “pecuniary interest” of each distributee; the decedent’s Last Will and Testament is not relevant to the division of the money allocated to the “wrongful death” claim.

The “pecuniary interest” of each distributee is not limited to the loss of financial support arising from the death, and includes the loss of “intellectual and moral support” provided by the decedent for each distributee. For example, in a wrongful death case, the surviving children can recover for their loss of the paternal guidance, nurturing and advice of their father, or in the case of the death of their mother, they can recover for their loss of the maternal guidance, nurturing and advice of their mother. For children, this is a substantial loss.

If a 7-year old child loses his/her mother, this is generally a more substantial loss than the loss of a mother for a grown adult. Thus, in that case, the damages allocated for the child’s loss are much higher than for those of the adult.

A surviving spouse can recover damages based upon the “wrongful death” claim for the loss of services and consortium. This means the services that would have been performed by his/her spouse had the decedent survived. This element of damages varies according to the life expectancies of both the decedent and the surviving spouse, i.e., damages are more substantial when the life expectancies are higher, and the state of their marriage. If the decedent and surviving spouse had a troubled marriage, the “loss of consortium” claim has little value.

How does the Court or Jury determine whether the damages are allocated to “pain and suffering” or “wrongful death”?

Based upon the duration and severity of the decedent’s conscious pain and suffering and the individual losses for wrongful death of each of the distributees, the Court or jury makes a determination that divides the money. In some cases involving a near instantaneous death, most of the money (if not all of it) will be allocated to the “wrongful death” claim.

If, on the other hand, the decedent died a slow, agonizing death, there may be a substantial allocation by the Court or jury for the decedent’s conscious pain and suffering. For example, if the decedent was burned alive in a house fire, the allocation of damages for the decedent’s conscious pain and suffering will be substantial.

Once there has been an allocation of the damages between the “pain and suffering” and the “wrongful death” claims, it is then a matter of simple math to determine “who gets what”.

What you can do if you want more information

If you want more information or have questions about wrongful death cases, I welcome your phone call on my toll-free cell at 1-866-889-6882 or you can send me an e-mail at jfisher@fishermalpracticelaw.com . You are always welcome to request a FREE copy of my book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com.