The Ins and Outs of a Lawsuit Because of the Wrongful Death of a Person

HNWElder Law, Estate Administration and Probate

wrongful deathWhen a person dies because of someone else’s intentional or negligent conduct, a lawsuit often follows: This type of legal claim is called a “Wrongful Death Action”

N.J.S.A. § 2A:31-l sets forth when an action for wrongful death exists.  Specifically, a cause of action for wrongful death exists when a person’s death is caused by a wrongful act, neglect, or default, such that the· person injured would have been entitled to maintain an action for damages resulting from the injury if death had not ensued.

The estate representative has a two-year statute of limitations for a wrongful death action following the death of the decedent, which should suffice under most circumstances.

A wrongful death action is brought for the exclusive benefit of a decedent is beneficiaries (under his/her last will) or those persons entitled to receive the decedent’s intestate property by law. So while the case can only be filed by the estate fiduciary the representative of it is that class of persons entitled to receive damages awarded in the case that receive in the economic benefit.

But here is an interesting twist and estate representatives watch out. A recovery under the wrongful death statute is not part of the decedent’s estate and is distributed without regard to the decedent’s last will and testament. Shocking but true, even though only the executor under the last will can file the lawsuit the money goes exclusively to those persons identified in the statute as being entitled to the proceeds.

The Role of the Fiduciary in a Survival Action Resulting from a Wrongful Death

There is such a thing as a Companion survival action. It differs from a wrongful death claim. Unlike a wrongful death action, the law authorizes a decedent’s estate to sue for any personal claims he or she would have had if he/she had survived.  The survival law sets forth the scope of a survival action. It authorizes a personal representative to bring an action and to recover money damages which decedent would have had if he or she was living. The executor or administrator may recover all damages which accrued during the decedent’s lifetime, as well as any reasonable funeral and burial expenses.

A “survival claim,” then, is a decedent’s own claim for damages accrued during his lifetime, which is brought by the Estate’s personal representative.

So What’s the Difference Between Wrongful Death and Survival Actions

As a practical matter not much but realize both are separate claims and money damages are available under both the wrongful death and survival statutes. A personal representative can (and usually will) file claims under both the Wrongful Death Act in one lawsuit.

Recovery under the survival action belongs to the decedent’s estate.

Many times a beneficiary files of legal proceedings to compel distributions ($$$) sooner than later but the law provides that a personal representative must first settle and distribute the estate in an efficient and expeditious manner that is in the best interests of the estate and, if possible, without court involvement. But here the law also provides (by statute) that a fiduciary is required to settle the estate promptly.   Promptly does not mean right away. The law provides that a fiduciary does not have to settle the estate for up to one year.  (N.J.S.A. 3B:17-2)

And while a personal representative is required to proceed expeditiously without court involvement, he or she is authorized to apply to the court to resolve questions concerning the estate or its administration.  N.J.S.A. § 3B:10-28, if confronted with multiple competing demands by a beneficiary (ie): Let’s look at some of the more common claims made against executors, administrators and Estate Representatives.

To discuss your NJ wrongful death lawsuit, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at  Please ask us about our video conferencing consultations if you are unable to come to our office.

By Fredrick P. Niemann, Esq. of Hanlon, Niemann & Wright, a Freehold Township, Monmouth County, New Jersey Estate Administration Attorney

Previous PostNext Post