Pursuant to EPTL 5-4.4(a), damages in a wrongful death action belong to the distributees of decedent who sustained a pecuniary loss. Pursuant to EPTL 5-4.1, the personal representative of a decedent who is survived by distributees may maintain the action. EPTL 5-4.3 provides that the damages to be awarded for a wrongful death claim are limited to the "fair and just compensation for the pecuniary injuries resulting from the decedent's death to the persons for whose benefit the action is brought."
An action arising out of a decedent's wrongful death should include not only the wrongful death claim for pecuniary loss by the next of kin but also a separate cause of action for decedent's conscious pain and suffering prior to death, sometimes referred to as decedent's survival claim. Any recovery on the survival claim is an estate asset and will be distributed either in accordance with decedent's will or intestate distribution in the absence of a will.
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