Can You File a Wrongful Death Lawsuit on Behalf of a Sibling?

The tragic and sudden loss of a loved one can devastate a family. While nothing can be done to turn back time, family members need to feel that justice is done, to have closure. In cases of accidental death, there are insufficient grounds for a criminal prosecution, so families must turn to the civil court system.

By filing a wrongful death lawsuit, family members can hold defendants accountable morally and monetarily for negligent acts and omissions that caused their loved one’s death. In our practice, we often hear from siblings who want to file wrongful death lawsuits on behalf of their brothers or sisters, but don’t know if the law allows them. The answer to whether a sibling can sue for wrongful death in New York is a little complicated.

In New York, a wrongful death lawsuit combines two different but related claims. The first is a survivorship claim, which covers personal injury damages the victim could have claimed against a defendant if he or she had lived. The second is the wrongful death claim which covers losses to the victim’s “distributees,” i.e., close family and dependents.

The damages from both types of claims include:

  • Conscious pain and suffering the deceased endured from the injury up to death
  • Funeral and burial expenses
  • Loss of consortium for the surviving spouse
  • Loss of financial support for dependents
  • Loss of guidance and support for children
  • Loss of inheritance for survivors
  • Loss of wages the victim would have earned but for the injury event
  • Medical bills due to the injury that resulted in death
  • Value of services the deceased provided for the family

None of the items on this list specifically benefits siblings. However, there are circumstances where a sibling might have paid for medical care and funeral expenses and needs to recover those costs. Or, a surviving sibling might have been financially dependent on the deceased. It is also possible for a sibling to be in line to inherit. New York laws of inheritance prioritize heirs as follows:

  • Spouse
  • Children
  • Parents
  • Siblings

For a sibling to inherit, the deceased would have to be without a spouse, children, or parents. Though these situations are rare, they do occur. So, it’s clear that a sibling could receive damages in a wrongful death case.

But can a sibling sue for wrongful death? That is, actually file the lawsuit? In New York, a wrongful death lawsuit must be filed by the personal representative of the decedent’s estate. This is generally the executor of the decedent’s will or the person the probate court appoints to settle the decedent’s estate. It is possible for a sibling to act as an executor or estate representative. That would put the sibling in the position to file the lawsuit.

But if someone else were appointed as the personal representative, the sibling would not be allowed to file a wrongful death lawsuit. The sibling could attempt to persuade the representative to file the suit, but the representative might refuse. In that case, the sibling might still have recourse. The personal representative is a fiduciary with a duty to act for the benefit of the estate.

If the wrongful death action is viable, meaning it’s likely to result in a settlement or verdict in favor of the estate, the personal representative has a duty to file the suit. The failure to do so would be a breach of fiduciary duty, and the representative could be personally liable for paying the damages the family could have recovered. Faced with those consequences, a representative would certainly file a lawsuit.

Because of the legal complexities, siblings who feel the need to file a wrongful death action should speak to an experienced attorney. The consultation is free since lawyers accept these cases on a contingency fee basis. But don’t delay. The statute of limitations for wrongful death in New York is two years from the date of death. After that, your opportunity to pursue justice for your loved one could be gone.