STATE OF NEW YORK
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11340
IN ASSEMBLY
May 11, 2026
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Introduced by COMMITTEE ON RULES -- (at request of M. of A. Lunsford,
Rosenthal, Steck, Dinowitz, Burdick, Hevesi, Stirpe, Simon, Schiavoni,
Meeks, Colton, McMahon, Shrestha, Kelles, Williams, Otis) -- read once
and referred to the Committee on Judiciary
AN ACT to amend the estates, powers and trusts law, in relation to the
payment and distribution of damages in wrongful death actions
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Paragraph 1 of section 5-4.1 of the estates, powers and
2 trusts law, as amended by chapter 114 of the laws of 2003, is amended to
3 read as follows:
4 1. The personal representative, duly appointed in this state or any
5 other jurisdiction, of a decedent [who is survived by distributees] may
6 maintain an action to recover damages for a wrongful act, neglect or
7 default which caused the decedent's death against a person who would
8 have been liable to the decedent by reason of such wrongful conduct if
9 death had not ensued. Such an action must be commenced within [two]
10 three years after the decedent's death[; provided, however, that an
11 action on behalf of a decedent whose death was caused by the terrorist
12 attacks on September eleventh, two thousand one, other than a decedent
13 identified by the attorney general of the United States as a participant
14 or conspirator in such attacks, must be commenced within two years and
15 six months after the decedent's death]. When the [distributees] persons
16 for whose benefit an action pursuant to this part may be brought do not
17 participate in the administration of the decedent's estate under a will
18 appointing an executor who refuses to bring such action, the [distribu-
19 tees] persons for whose benefit an action pursuant to this part may be
20 brought are entitled to have an administrator appointed to prosecute the
21 action for their benefit.
22 § 2. Paragraph (a) of section 5-4.3 of the estates, powers and trusts
23 law, as amended by chapter 100 of the laws of 1982, is amended to read
24 as follows:
25 (a) The damages awarded to the plaintiff may be such sum as the jury
26 or, where issues of fact are tried without a jury, the court or referee
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07457-01-5
A. 11340 2
1 deems to be fair and just compensation for the [pecuniary] injuries
2 resulting from the decedent's death to the persons for whose benefit the
3 action is brought. In every such action, in addition to any other lawful
4 element of recoverable damages, [the reasonable expenses of medical aid,
5 nursing and attention incident to the injury causing death and the
6 reasonable funeral expenses of the decedent paid by the distributees, or
7 for the payment of which any distributee is responsible, shall also be
8 proper elements of damage] compensation for the following damages may
9 be recovered: (i) reasonable funeral expenses of the decedent paid by
10 the persons for whose benefit the action is brought, or for the payment
11 of which any persons for whose benefit the action is brought is respon-
12 sible; (ii) reasonable expenses for medical care incident to the injury
13 causing death, including but not limited to doctors, nursing, attendant
14 care, treatment, hospitalization of the decedent, and medicines; (iii)
15 grief or anguish caused by the decedent's death; (iv) other pecuniary
16 injuries, including loss of services, support, assistance, and loss or
17 diminishment of inheritance, resulting from the decedent's death; and
18 (v) loss of nurture, guidance, counsel, advice, training, companionship
19 and education resulting from the decedent's death. Interest upon the
20 principal sum recovered by the plaintiff from the date of the decedent's
21 death shall be added to and be a part of the total sum awarded.
22 § 3. Section 5-4.4 of the estates, powers and trusts law, paragraph
23 (a) as amended by chapter 357 of the laws of 1975, and the opening para-
24 graph of paragraph (a) as amended by chapter 595 of the laws of 1992, is
25 amended to read as follows:
26 § 5-4.4 Distribution of damages recovered
27 (a) The damages, as prescribed by 5-4.3, whether recovered in an
28 action or by settlement without an action, are exclusively for the bene-
29 fit of the [decedent's distributees and, when collected, shall be
30 distributed to the persons entitled thereto under 4-1.1 and 5-4.5,
31 except that where the decedent is survived by a parent or parents and a
32 spouse and no issue, the parent or parents will be deemed to be distri-
33 butees for purposes of this section] persons for whose benefit the
34 action is brought, which shall be defined as and limited to the
35 decedent's spouse or domestic partner, decedent's distributees, as
36 defined by 4-1.1 of this chapter and 5-4.5 of this part, any person
37 standing in loco parentis to the decedent, and to any person to whom the
38 decedent stood in a position of in loco parentis. An in loco parentis
39 relationship shall be presumed when an adult and minor share or have
40 recently shared a household. The finder of fact shall determine which of
41 those persons for whose benefit the action is brought, as defined in
42 this paragraph, are entitled to damages under this section based upon
43 the specific circumstances relating to the person's relationship with
44 the decedent. The damages shall be distributed subject to the follow-
45 ing:
46 (1) Such damages shall be distributed by the personal representative
47 to the persons entitled thereto in proportion to the [pecuniary] inju-
48 ries suffered by them, such proportions to be determined after a hear-
49 ing, on application of the personal representative or any [distributee]
50 persons for whose benefit the action is brought, at such time and on
51 notice to all interested persons in such manner as the court may direct.
52 If no action is brought, such determination shall be made by the surro-
53 gate of the county in which letters were issued to the plaintiff; if an
54 action is brought, by the court having jurisdiction of the action or by
55 the surrogate of the county in which letters were issued.
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1 (2) The court which determines the proportions of the [pecuniary]
2 injuries suffered by the [distributees] persons for whose benefit the
3 action is brought, as provided in subparagraph (1) of this paragraph,
4 shall also decide any question concerning the disqualification of a
5 parent, under 4-1.4 of this chapter, or a surviving spouse, under 5-1.2
6 of this article, to share in the damages recovered.
7 (b) The reasonable expenses of the action or settlement and, if
8 included in the damages recovered, the reasonable expenses of medical
9 aid, nursing and attention incident to the injury causing death and the
10 reasonable funeral expenses of the decedent may be fixed by the court
11 which determines the proportions of the [pecuniary] injuries suffered by
12 the [distributees] persons for whose benefit the action is brought, as
13 provided in subparagraph (1) of this paragraph, upon notice given in
14 such manner and to such persons as the court may direct, and such
15 expenses may be deducted from the damages recovered. The commissions of
16 the personal representative upon the residue may be fixed by the surro-
17 gate, upon notice given in such manner and to such persons as the surro-
18 gate may direct or upon the judicial settlement of the account of the
19 personal representative, and such commissions may be deducted from the
20 damages recovered.
21 (c) In the event that an action is brought, as authorized in this
22 part, and there is no recovery or settlement, the reasonable expenses of
23 such unsuccessful action, excluding counsel fees, shall be payable out
24 of the assets of the decedent's estate.
25 (d) For the purposes of this section, the term "domestic partner"
26 shall have the same meaning as defined pursuant to section two thousand
27 nine hundred sixty-one of the public health law.
28 § 4. Paragraphs (a) and (b) of section 5-4.6 of the estates, powers
29 and trusts law, paragraph (a) as amended and paragraph (b) as added by
30 chapter 719 of the laws of 2005, are amended to read as follows:
31 (a) Within sixty days of the application of an administrator appointed
32 under 5-4.1 of this part or a personal representative to the court in
33 which an action for wrongful act, neglect or default causing the death
34 of a decedent is pending, the court shall, after inquiry into the merits
35 of the action and the amount of damages proposed as a compromise either
36 disapprove the application or approve in writing a compromise for such
37 amount as it shall determine to be adequate including approval of attor-
38 neys fees and other payable expenses as set forth below, and shall order
39 the defendant to pay all sums payable under the order of compromise,
40 within the time frames set forth in section five thousand three-a of the
41 civil practice law and rules, to the attorney for the administrator or
42 personal representative for placement in an interest bearing escrow
43 account for the benefit of the [distributees] persons for whose benefit
44 the action is brought. The order shall also provide for the following:
45 (1) Upon collection of the settlement funds and creation of an inter-
46 est bearing escrow account, the attorney for the administrator or
47 personal representative shall pay from the account all due and payable
48 expenses, excluding attorneys fees, approved by the court, such as
49 medical bills, funeral costs and other liens on the estate.
50 (2) All attorneys fees approved by the court for the prosecution of
51 the action for wrongful act, neglect or default, inclusive of all
52 disbursements, shall be immediately payable from the escrow account upon
53 submission to the trial court proof of filing of a petition for allo-
54 cation and distribution in the surrogate's court on behalf of the
55 decedent's estate.
A. 11340 4
1 (3) The attorney for the administrator or personal representative in
2 the action for wrongful act, neglect or default who receives payment
3 under this section shall continue to serve as attorney for the estate
4 until the entry of a final decree in the surrogate's court.
5 (b) If any of the [distributees] persons for whose benefit the action
6 is brought is an infant, incompetent, person who is incarcerated or
7 person under disability, the court shall determine whether a guardian ad
8 litem is required before any payments are made, in which case the court
9 will seek an immediate appointment of a guardian ad litem by the surro-
10 gate's court or, if the surrogate's court defers, the court shall make
11 such appointment. Any guardian appointed for this purpose shall continue
12 to serve as the guardian ad litem for the person requiring same for all
13 other purposes.
14 § 5. This act shall take effect immediately and shall apply to all
15 causes of action that have accrued on or after January 1, 2022.
