Wrongful Death Compromises: A Proposal
In this Trusts and Estates Law column, C. Raymond Radigan and Lisa Fenech write: The systems by which wrongful death actions are commenced, and settled, are integral to the proper reimbursement to families for their loss. As a statutory mechanism for recovery, the procedures followed must be uniform to enable consistent recovery and allocation of funds. The incorporation of SCPA §702(1) restrictions on all Letters would ensure reliability for decedent's families and the courts in these matters.
December 30, 2020 at 01:00 PM
7 minute read
When a decedent passes away as a result of negligence, omission, or a tortious action of another, the personal representative may bring a wrongful death action on behalf of the distributees pursuant to EPTL §5-4.1. The personal representative, whether it be an Executor or Administrator, is granted the power to bring the wrongful death proceeding through Letters Testamentary or Letters of Administration issued by the Surrogate's Court. However, after the power is given through Letters, the wrongful death action is brought in Supreme Court, where only the Executor or Administrator is before the court and other interested parties, such as creditors, are not. The Supreme Court oversees discovery, negotiates settlement, or conducts a trial. Once settled, the Surrogate's Court reviews the settlement, approves or disproves the settlement, and orders its distribution. This is the usual procedure, but there are various situations which provide for different results.
If there is a wrongful death claim to prosecute, the personal representative must indicate so on the probate petition. Once appointed and Letters are issued, the Letters will contain a restriction pursuant to SCPA §702(1). The restriction provides the Executor or Administrator the ability to bring a wrongful death action, but not the ability to compromise or settle the action without a further order of the Surrogate's Court. (See SCPA 702, which provides, "Letters may be granted limiting and restricting the powers and rights of the holder hereof: (1) To the enforcement or prosecution of a cause of action in favor of the decedent or his fiduciary under general or special provisions of law, to the defense of any claim or cause of action against a decedent or his fiduciary, and restraining the fiduciary from compromise of the action or the enforcement of a judgment recovered therein until the further order of the court and the filing of satisfactory security, if required.") This restriction is most often written on the Letters themselves, and indicates to the Supreme Court that after the work to settle the claim is completed, the Surrogate's Court must review the settlement before it can be distributed. If approved, the Surrogate's Court will then order the Executor or Administrator to collect the proceeds and distribute them.
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