Brooklyn bridge on a foggy morning

What Goes into Determining Wrongful Death?

When a person is killed by another person’s accidental or intentional acts, it is considered wrongful death. The surviving family members of the victim may be able to file a wrongful death claim against the liable party. This allows the family to receive compensation for damages, whether or not the liable party is convicted of a crime.

However, each state has specific laws that apply. In order to receive any type of compensation, you must first prove that your loved one died a wrongful death.

Wrongful Death in NY

 In order to claim wrongful death, these four elements most commonly apply.

  1. The liable party acted negligently.
  2. The negligence directly caused your loved one to die.
  3. There are surviving family members, such as a spouse or children.
  4. The survivors suffered damages from the person’s death.

When distinguishing these elements, the person filing the claim (the plaintiff) must meet the burden of proof. This means that the quality of the evidence must show that the liable party (the defendant) more likely than not caused the person’s death. The burden of proof is lower than that of a criminal case, where it must be proven that the person committed the crime beyond a reasonable doubt.

Who Can File a Wrongful Death Claim?

 According to New York law, only the personal representative of the victim’s estate can bring about a wrongful death claim. This often applies to spouses and children. However, if there is no will or other estate plan in place, then it’s possible other family members could also bring about a claim if the victim had no other family members. Even separated spouses may file a claim if they still depended on the deceased family member for financial support.

A personal representative can be appointed during the probate process. Therefore, you should document the claim, start the probate process and work with a lawyer to file the claim. Once the person has died, there is often a short time limit to file a wrongful death claim.

Types of Compensation for Wrongful Death

As a surviving family member, you may be eligible to receive just two types of compensation for your loved one’s death: economic damages for yourself and pain and suffering that the deceased person suffered. However, this covers many types of damages.

If your loved one was injured but did not die right away after the accident, he or she likely suffered much more pain and suffering than someone who died immediately following an accident, for example. You may be able to receive compensation for your loved one’s pain and suffering before death.

You may also claim damages that you paid for or lost out on as a result of your family member’s death. While you cannot claim compensation for your grief, you could receive compensation for your loved one’s medical expenses as well as funeral and burial costs. You could also seek compensation for lost wages and benefits. Spouses may claim loss of companionship and services. For example, if the deceased was a stay-at-home parent, the surviving spouse would now have to hire a babysitter and perhaps someone to clean and care for the home.

Children of the deceased may claim compensation for damages as well. Common damages include loss of guidance and parental support.

Get Legal Help from a Brooklyn Wrongful Death Lawyer

Nothing can prepare a family for the sudden death of a loved one. When a person does die from someone else’s negligence, there is the opportunity to take legal action. While suing someone and receiving compensation will not bring your loved one back to life, it can help with economic losses you may be facing after a loved one’s unexpected death.

To file your wrongful death claim, contact The Law Office of Jeffrey K. Kestenbaum. He can help determine your rights to compensation. Call our Brooklyn office at (718) 237-5586 to schedule your consultation today.

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