Practitioners litigating wrongful death actions must confront challenges beyond simply litigating the claim itself. Settling these actions involves a specific procedure between the trial court and the Surrogate’s Court which must be complied with.1 This article seeks to provide practical advice concerning the potentially tricky process.
Who Has Authority to Litigate?
When the action is brought after the decedent has died, a fiduciary of the estate must be appointed and their authority to litigate the claims determined. The fiduciary is the one to bring the survival action for pain and suffering (which recovery is payable to the estate and subject to estate taxes, claims and commissions) and for wrongful death (on behalf of the distributees who suffered a pecuniary loss).
