NY EPTL 5-4.4 Distribution of Damages Recovered

This post is part of the NY wrongful death statutory corpus. For the Part 4 hub, see: NY EPTL Part 4 (Wrongful Death).

§ 5-4.4 Distribution of damages recovered

(a) The damages, as prescribed by 5-4.3, whether recovered in an action or by settlement without an action, are exclusively for the benefit of the decedent's distributees and, when collected, shall be distributed to the persons entitled thereto under 4-1.1 and 5-4.5, except that where the decedent is survived by a parent or parents and a spouse and no issue, the parent or parents will be deemed to be distributees for purposes of this section. The damages shall be distributed subject to the following:

(1) Such damages shall be distributed by the personal representative to the persons entitled thereto in proportion to the pecuniary injuries suffered by them, such proportions to be determined after a hearing, on application of the personal representative or any distributee, at such time and on notice to all interested persons in such manner as the court may direct. If no action is brought, such determination shall be made by the surrogate of the county in which letters were issued to the plaintiff; if an action is brought, by the court having jurisdiction of the action or by the surrogate of the county in which letters were issued.

(2) The court which determines the proportions of the pecuniary injuries suffered by the distributees, as provided in subparagraph (1), shall also decide any question concerning the disqualification of a parent, under 4-1.4, or a surviving spouse, under 5-1.2, to share in the damages recovered.

(b) The reasonable expenses of the action or settlement and, if included in the damages recovered, the reasonable expenses of medical aid, nursing and attention incident to the injury causing death and the reasonable funeral expenses of the decedent may be fixed by the court which determines the proportions of the pecuniary injuries suffered by the distributees, as provided in subparagraph (1), upon notice given in such manner and to such persons as the court may direct, and such expenses may be deducted from the damages recovered. The commissions of the personal representative upon the residue may be fixed by the surrogate, upon notice given in such manner and to such persons as the surrogate may direct or upon the judicial settlement of the account of the personal representative, and such commissions may be deducted from the damages recovered.

(c) In the event that an action is brought, as authorized in this part, and there is no recovery or settlement, the reasonable expenses of such unsuccessful action, excluding counsel fees, shall be payable out of the assets of the decedent's estate.

What 5-4.4 Does

Function: Governs distribution of wrongful death damages (as defined in 5-4.3) among those entitled.

A key structural point: 5-4.4 is about distribution among beneficiaries, not about allocating settlement proceeds between different causes of action.

What 5-4.4 adds beyond “distribution”

• Applies whether damages are recovered in an action or by settlement without an action.
• States that the damages are exclusively for the benefit of distributees.
• Requires a hearing to determine proportions, and specifies which court determines them depending on whether an action was brought.
• Assigns the same court the job of deciding certain disqualification issues.
• Allows the court to fix and deduct certain expenses, and addresses commissions.
• Addresses who pays certain costs if an action is brought but unsuccessful.

Crosslinks

• Hub: NY EPTL Part 4
• Damages definition: NY EPTL 5-4.3
• Non-marital children: NY EPTL 5-4.5
• Compromise workflow: NY EPTL 5-4.6