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15 August 20228 minute read

Senate Bill S74A seeks to significantly expand recoverable damages in wrongful death actions in New York

Senate Bill S74A, known as New York’s Grieving Families Act, would amend the provisions of the state’s estates, powers and trusts law (EPTL) in relation to the payment and distribution of damages in wrongful death actions.  The purpose of the bill is to permit the families of wrongful death victims to recover compensation for their emotional anguish, which is presently unavailable under New York law. 


It is expected that Governor Kathy Hochul will sign the bill into law.  Once enacted, this new legislation will allow surviving family members to recover non-economic damages in wrongful death actions.  This amendment is part of a trend in state law to expand the damages available to surviving family members asserting claims for the loss of a loved one.  For instance, California recently enacted SB 447, which now permits the recovery of damages in survival actions to include a decedent’s pain, suffering or disfigurement.


Expanding the scope of a defendant’s liability in this way increases the risk of exposure to higher damages awards and further lawsuits.  Below is a discussion of the proposed legislation.


The existing statutory framework


EPTL § 5-4.1 permits an estate representative to assert a wrongful death cause of action on behalf of the decedent’s “distributees” who suffered pecuniary loss within two years of the decedent’s death.


EPTL § 4-1.1 defines “distributees” as a surviving “spouse” and blood relatives (eg, parents, issue, brothers and sisters).  Its provisions have been strictly cons1d.[1]  The cause of action belongs to the distributees, unlike an action for personal injury, which, under EPTL § 13-3.2, belongs to the decedent’s estate.[2]


To date, New York courts have limited recovery to “pecuniary injuries” that are defined in the provisions of EPTL § 5-4.3.[3]  Courts have prevented recovery for non-economic damages, such as grief, loss of affection and fellowship, and loss of consortium.[4]


The proposed amendments


The text of Senate Bill S74A provides several important changes to the provisions of the EPTL.


Section 1 amends EPTL § 5-4.1 to extend the time permitted to bring a wrongful death action by one year and six months.


Section 2 would amend EPTL § 5-4.3(a) to permit recovery of the following:

  • Reasonable funeral expenses of the decedent paid by the persons for whose benefit the action is brought, or for the payment of which any persons for whose benefit the action is brought is responsible
  • Reasonable funeral expenses of the decedent paid by the persons for whose benefit the action is brought, or for the payment of which any persons for whose benefit the action is brought is responsible
  • Reasonable expenses for medical care incident to the injury causing death, including but not limited to doctors, nursing, attendant care, treatment, hospitalization of the decedent and medicines
  • Grief or anguish caused by the decedent’s death, and for any disorder caused by such grief or anguish
  • Loss of love, society, protection, comfort, companionship and consortium resulting from the decedent’s death
  • Pecuniary injuries, including loss of services, support, assistance and loss or diminishment of inheritance resulting from the decedent’s death and
  • Loss of nurture, guidance, counsel, advice, training and education resulting from the decedent’s death.

Section 3 amends EPTL § 5-4.4 to permit recovery by close family members.


Section 4 amends EPTL § 5-4.6 to replace the term “distributees” with “persons for whose benefit the action is brought.”


Section 5 states that the act shall take effect immediately and shall apply to all pending actions and actions commenced on or after such date.


The rationale


According to Senate Bill S74A, “[c]urrent law allows recovery of pecuniary loss only, thus making it impossible for close family members to receive any compensation for their non-economic loss.” 


As cited justification for the proposed changes, the current law, which awards compensation for pecuniary loss only, “impacts most harshly on children, seniors, women and people of color, who often have no income or significantly less income, and are traditionally undervalued in our society.”


The ramifications


The consequences of the proposed amendments to defendants are significant.  The amendment to Section 1 would extend the statute of limitations from two years to three years and six months, potentially increasing the volume of wrongful death lawsuits and running the risk that documents and/or witnesses will be unavailable to defend against claims brought years after the alleged wrongful acts.


Section 2 amends EPTL § 5-4.3 to allow for the recovery of emotional damages if a tortfeasor is found liable for causing a death.  This would open the door to non-economic damages such as grief, sympathy, society and loss of companionship or consortium.  Such damages may far exceed the amount of economic damage awards because intangible factors, such as subjective values, beliefs, emotional sensitivities and differing perspectives of justice, often drive their assessments.  Courts and juries often struggle to calculate fair and rational non-economic damage awards, and they can vary widely from case to case. 


Section 3 amends EPTL § 5-4.4 to permit recovery by close family members, thus broadening the scope of potential claimants with standing to assert a wrongful death causes of action.


Section 5 of the bill provides that the law shall take effect immediately and shall apply to all pending actions, as well as newly filed actions commenced on or after the effective date of the law. 


While some states, like New York, have instituted apportionment laws, such as CPLR § 1601[5], it is undeniable that the proposed changes contemplated by Senate Bill S74A will alter the landscape of damage recoveries across the state.[6]


From a claims administration standpoint, the increase in available damages associated with this bill, along with the recent statutory requirements for extensive insurance-related disclosures, will almost certainly result in an increase in claims and lawsuit filings in New York and will drive up the associated costs of defense, settlement and administration.


Should these proposed alterations be signed into law as expected, defendants should be prepared for an increase in recoverable damages in wrongful death actions for all currently pending and newly filed lawsuits across the state.

[1] See, eg, Langan v. St. Vincent's Hosp. of New York, 25 A.D.3d 90, 802 N.Y.S.2d 476 (2005) (surviving partner of same-sex civil union could not bring wrongful death action), but see Saegert v. Simonelli, 12 Misc.3d 1193(A), 824 N.Y.S.2d 758, N.Y.L.J. August 16, 2006, at 23, col. 3 (Supreme Court Nassau County) (as executor of the estate, however, the partner can bring the wrongful death action on behalf of the distributees). 

[2] See EPTL § 5-4.3.

[3] Such as, for example, “the reasonable expenses of medical aid, nursing and attention incident to the injury causing death and the reasonable funeral expenses of the decedent paid by the distributes.”  EPTL § 5-4.3.

[4] See, eg, Tilley v. Hudson River Railroad Co., 24 N.Y. 471, 475-77 (1862); Liff v. Schildkrout, 49 N.Y.2d 622, 404 N.E.2d 1288 (1980) (a widow’s consortium claim denied); Parilis v. Feinstein, 49 N.Y.2d 984, 406 N.E.2d 1059 (1980) (parents’ recovery for wrongful death of infant limited to pecuniary damages); Gonzalez v. New York City Hous. Auth., 77 N.Y.2d 663, 572 N.E.2d 598 (1991) (adult grandchildren denied non-economic damages).

[5] Which provides, in part, “…when a verdict or decision in an action or claim for personal injury is determined in favor of a claimant in an action involving two or more tortfeasors jointly liable or in a claim against the state and the liability of a defendant is found to be fifty percent or less of the total liability assigned to all persons liable, the liability of such defendant to the claimant for non-economic loss shall not exceed that defendant’s equitable share determined in accordance with the relative culpability of each person causing or contributing to the total liability for non-economic loss…” (CPLR § 1601.)

[6] Organizations such as the Lawsuit Reform Alliance of New York have sponsored a veto campaign against the enactment of SB S74A.  (See