Deviate from the Kaiser Formula in a Wrongful Death Action

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Did you know that you can Deviate from the Kaiser formula in wrongful death action?

What Is the Kaiser Formula and How Do I Deviate from the Kaiser Formula in a Wrongful Death Action?

In New York wrongful death actions, Surrogate’s Court approval is required to allocate settlement proceeds among the decedent’s distributees. Under the leading case Matter of Kaiser, 198 A.D.2d 312 (2d Dep’t 1993), courts typically allocate the wrongful death proceeds equally among distributees of the same class—regardless of age, financial dependency, or the nature of the relationship.

But this “equal shares” approach isn’t a rigid rule—it’s a starting presumption that can be rebutted by compelling facts.

When Can Courts Deviate from Kaiser?

Courts may deviate from the Kaiser formula where:

  • There is documented financial dependency;
  • One or more distributees had an estranged or limited relationship with the decedent;
  • The age or health of the distributee significantly impacts pecuniary loss;
  • Consent from all distributees exists to support an alternate distribution.

Let’s examine these in more detail—with case law.

1. Financial Dependency Justifies Larger Share

📚 Matter of Acquafredda, 189 A.D.2d 504 (1st Dep’t 1993):
The Court approved a deviation from equal shares where one distributee was a disabled adult son who was financially dependent on the decedent, while the other distributees were self-sufficient adults. The dependent son received a greater portion of the settlement.

📌 Practice Tip: Submit medical records, dependency affidavits, and evidence of living arrangements to demonstrate dependency.

2. Estrangement or Lack of Relationship Reduces or Eliminates Share

📚 Matter of Cordero, N.Y.L.J., Mar. 21, 2000, at 32 (Sur. Ct. Westchester County):  The Surrogate reduced the share of a distributee who had no contact with the decedent and never provided financial support, while awarding a larger share to the distributee who had cared for and lived with the decedent.

📌 Practice Tip: Provide affidavits, correspondence, or witness statements showing the nature of the relationship—or lack thereof.

3. Minor Children Receive Greater Shares Due to Longer Support Loss

📚 Matter of Marcellin, N.Y.L.J., Nov. 21, 2000, at 30 (Sur. Ct. Nassau County).:
The Court approved a deviation where the decedent left behind minor children. The adult parent was given the award on behalf of all of the children. 

 In an uncontested proceeding, all distributees executed waivers and consents to an unequal distribution. The Court accepted the proposed allocation based on the parties’ agreement and attorney affirmations.

📌 Practice Tip: Even with consent, courts still require an affidavit from counsel explaining the rationale and confirming all parties understand their rights.

What Happens If There’s a Dispute Over the Allocation and How Do I Deviate from the Kaiser Formula in a Wrongful Death Action?

When one or more distributees object to a proposed allocation, the Court may:

  • Schedule a hearing;
  • Appoint a guardian ad litem for minors or unknowns;
  • Require affidavits, discovery, or expert testimony on pecuniary loss.

Ultimately, the Surrogate’s duty is to ensure the proposed compromise is fair and reasonable under EPTL § 5-4.6 and the facts presented.

Key Takeaways on How to Deviate from the Kaiser Formula in a Wrongful Death Action

  • The Kaiser formula is a default rule, not a mandate.
  • Courts permit deviations where facts show unequal impact, support needs, or consent exists.
  • Case law supports greater shares for dependents and reduced shares for estranged or independent distributees.

At RK Law PC, we regularly represent petitioners and objectants in wrongful death compromises in Surrogate’s Courts throughout Brooklyn, Manhattan, Bronx, Queens, and Staten Island.

❓ Frequently Asked Questions (FAQ) on How to Deviate from the Kaiser Formula in a Wrongful Death Action

Q: What is the Kaiser formula in New York wrongful death settlements?

A: The Kaiser formula refers to the equal distribution of wrongful death proceeds among distributees of the same class. It originates from Matter of Kaiser, 198 A.D.2d 312 (2d Dep’t 1993).

Q: Can I challenge an equal distribution under the Kaiser formula?

A: Yes. If you can show factors like dependency, estrangement, or financial need, courts may approve a deviation. See Matter of Acquafredda 

Q: What evidence is required to deviate from Kaiser?

A: Courts look for affidavits, financial records, medical documentation, school records, and sometimes expert opinions or actuarial data.

Q: Does Surrogate’s Court always follow the Kaiser formula?

A: No. Courts follow it unless compelling reasons exist to deviate. It is a guideline, not a statute.

Q: What if the distributees agree on a different allocation?

A: If all distributees consent and the Court finds the proposal fair, deviation is typically allowed. 

For more information, please contact NYC Probate Litigation, Guardianship, Probate, and Estate Planning attorney Regina Kiperman:

Phone: 917-261-4514
Fax: 929-556-2089
Email: rkiperman@rklawny.com

Or visit her at:
40 Wall Street
Suite 2508
New York, NY 10005
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This page is made available by the lawyer for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this site you understand that there is no attorney client relationship between you and the lawyer. The post should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. ATTORNEY ADVERTISING.

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