New York’s wrongful death framework is codified in Part 4 of EPTL Article 5 (Family Rights). This Part defines who may bring a wrongful death action, what damages are recoverable, how settlements are approved, and how proceeds are distributed.
EPTL Part 4 does not address pleading rules, venue, or general civil procedure. Instead, it allocates substantive rights and authority among personal representatives, distributees, and courts.
This post provides a statute-by-statute overview of EPTL Part 4 and explains how the provisions fit together.
EPTL 5-4.1 — Action by Personal Representative for Wrongful Act, Neglect or Default
Function: Creates the wrongful death cause of action and identifies who may bring it.
A wrongful death action must be brought by the personal representative of the decedent. The claim exists for the benefit of the decedent’s distributees, not for the estate itself.
Key point: Standing is statutory and exclusive. Individual distributees do not sue in their own names.
EPTL 5-4.2 — Time to Commence Action
Function: Establishes the statute of limitations for wrongful death actions.
The action must generally be commenced within two years of death, subject to limited exceptions.
This limitations period is distinct from those governing personal injury actions or medical malpractice claims and should not be conflated with them.
EPTL 5-4.3 — Amount of Recovery
Function: Defines what damages are recoverable in a wrongful death action.
Recovery is limited to pecuniary injuries suffered by the distributees, including:
- loss of financial support,
- loss of services,
- loss of parental guidance and nurturing, and
- reasonable funeral and burial expenses.
New York law does not permit recovery for grief, emotional distress, or loss of companionship in a wrongful death action, except where expressly authorized by statute.
Key point: Damages focus on the survivors’ economic loss, not the decedent’s suffering.
EPTL 5-4.4 — Distribution of Recovery
Function: Governs how wrongful death proceeds are distributed among distributees.
Distribution is based on each distributee’s pecuniary injury, not on intestacy shares or equal division. The Surrogate’s Court determines how wrongful death proceeds are apportioned among eligible recipients.
Critical boundary: EPTL 5-4.4 governs distribution, not allocation between causes of action. It assumes that a wrongful death recovery already exists.
EPTL 5-4.5 — Contributory Negligence
Function: Preserves the effect of the decedent’s contributory or comparative negligence.
Any negligence attributable to the decedent reduces the recovery in the same manner it would have if the decedent had survived.
This provision reinforces that wrongful death claims are derivative as to liability, even though damages belong to distributees.
EPTL 5-4.6 — Compromise of Action
Function: Authorizes court approval of settlements and compromises.
Court approval is required for the settlement of a wrongful death action. In approving a compromise, the court may:
- authorize settlement,
- direct escrow of proceeds,
- approve attorneys’ fees and expenses, and
- determine allocation between wrongful death and survival claims.
This approval typically occurs before any Surrogate’s Court proceeding to distribute proceeds.
Key point: Allocation under EPTL 5-4.6 precedes distribution under EPTL 5-4.4.
How the Statutes Fit Together
EPTL Part 4 does not present the statutes in procedural order. However, the provisions can be understood functionally by reference to the role each plays in a wrongful death action:
- 5-4.1 creates the wrongful death claim
- 5-4.2 limits when it may be brought
- 5-4.3 defines recoverable damages
- 5-4.6 governs settlement approval and allocation
- 5-4.4 governs distribution of wrongful death proceeds
- 5-4.5 adjusts recovery based on fault
Understanding this sequence helps avoid common errors, particularly the conflation of allocation and distribution.
What EPTL Part 4 Does Not Do
EPTL Part 4 does not:
- define conscious pain and suffering,
- govern survival actions,
- address Medicaid or other liens directly, or
- authorize non-pecuniary wrongful death damages.
Those issues arise under other statutes and doctrines and are addressed elsewhere.
Why This Structure Matters
EPTL Part 4 establishes a clear division of roles:
- Supreme Court typically approves settlements and fixes allocation under EPTL 5-4.6.
- Surrogate’s Court distributes wrongful death proceeds under EPTL 5-4.4.
Keeping those roles distinct is essential to understanding wrongful death practice in New York.
This post serves as a statutory reference point for future discussions of wrongful death procedure, allocation, and distribution.
Hani Sarji
New York lawyer who cares about people, is fascinated by technology, and is writing his next book, Estate of Confusion: New York.
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