This post explores how to file Wrongful Death Petition in New York County Surrogate Court.
Wrongful Death Petition in New York County Surrogate’s Court – When Surrogate Court Gets Involved (And Why)
New York’s wrongful death statute authorizes the personal representative to bring the claim (EPTL 5-4.1). Any settlement or judgment must be approved and allocated—and the proceeds distributed—by the Surrogate’s Court (EPTL 5-4.4 and 5-4.6). The content of a compromise petition is set by 22 NYCRR § 207.38 (time/place/manner of injury, distributees, liens/expenses, proposed distribution, etc.). Venue is generally the decedent’s county of domicile (SCPA 205; see SCPA 206 for non-domiciliaries). For Manhattan, you’ll file in New York County Surrogate’s Court.
Wrongful Death Petition in New York County Surrogate Court – Step-By-Step: Building A Compliant Petition Package
1) Confirm Authority And Venue
- Make sure your Petitioner has either Letters Testamentary or Letters of Administration or Limited Letters of Administration.
- Confirm New York County venue (domicile or other basis under SCPA 206).
2) Draft The Petition To Match § 207.38
Include: accident facts; identity/ages/addresses of distributees; gross settlement, fees, and net recovery; funeral/medical/hospital expenses; all liens (Medicare/Medicaid/hospital); and your proposed allocation and distribution (and annuity cost if structured).
3) Attach the right affidavits & exhibits
- Petition (facts, negotiations, and why the result is fair).
- Attorney Affirmation (services rendered, fee basis, and disbursements).
- OCA Retainer/closing statement; settlement agreement; releases; lien proofs; funeral bill.
- Consents/waivers from distributees; otherwise request issuance of Citation.
- If minors are involved, propose structured settlements/guardianship for the funds and a form of decree that addresses withdrawals.
4) Show Your Allocation Theory (And Evidence)
Courts typically start with the Kaiser approach for wrongful death allocation (years of expected support as a proxy for pecuniary loss), but they may deviate based on the family’s actual circumstances (dependency, health, special needs, estrangement, etc.). Provide a clear, fact-driven rationale tied to pecuniary loss evidence (earnings history, dependency charts, life tables).
5) Make the WD vs. P&S split explicit in the papers
Add a paragraph in both the petition and the proposed decree stating the dollar or percentage split and who will receive each component (see table below and “Drop-in line”).
6) E-File And Handle Required Originals
File via NYSCEF in the existing estate matter (or commence one). Follow New York County’s current e-filing protocol for any originals that must be mailed (e.g., original Will; certified death certificate). Serve Citation/Notice of Settlement where required and calendar the return date.
7) After Approval
Comply with the decree: fund any required escrow/blocked accounts, satisfy approved liens/expenses, pay approved legal fees and disbursements, and distribute in the ordered shares. File any required receipts and releases.
Wrongful Death Petition in New York County Surrogate Court – Allocation: Wrongful Death vs. Conscious Pain & Suffering — Side-by-Side
| Topic | Wrongful Death (WD) | Conscious Pain & Suffering (P&S) |
| Legal basis | EPTL 5-4.1, 5-4.3, 5-4.4 | EPTL 11-3.2(b) (survival claim) |
| Who “owns” the claim | Personal representative for the exclusive benefit of distributees | Estate (general asset) |
| Who receives the money | Distributees in proportion to pecuniary loss (Kaiser as a starting point; court may deviate) | Estate, then passes by Will (or intestacy if no Will) |
| Effect of the Will | Bypasses the Will | May pass by Will (or intestacy under EPTL 4-1.1) |
| Creditor exposure | Generally not subject to estate creditors | Subject to estate creditors like other estate assets |
| Fiduciary commissions | Generally no commissions (not an estate asset) | Commissionable as an estate asset |
| Estate-tax treatment (high level) | Generally not includible in the decedent’s taxable estate | Includible in the taxable estate |
| Typical liens/expenses | Funeral/medical reimbursements; Medicare/Medicaid/hospital liens handled per decree | Estate administration expenses, creditor claims, taxes, commissions |
| Who must be cited/consent | Distributees (plus GALs/guardians where needed) | Estate beneficiaries/heirs (and creditors if directed) |
| Allocation proof | Pecuniary loss evidence (dependency, ages, earnings; justify any Kaiser deviation) | Evidence of conscious pain, duration, medical proofs supporting P&S value |
| Common drafting pitfall | Failing to separate WD vs. P&S amounts and basis for the split | Forgetting P&S proceeds are estate assets (creditors/commissions/taxes may apply) |
Drop-in drafting line (use in petition and decree):
“Of the total settlement of $, Petitioner allocates $ to Wrongful Death (to be distributed among distributees per pecuniary loss) and $___ to Conscious Pain & Suffering (to be paid to the Estate and administered pursuant to the Will / EPTL 4-1.1).”
Wrongful Death Petition in New York County Surrogate Court – Attorney Checklist
- ✅ Check Venue and whether Letters are in effect.
- ✅ Petition satisfies 22 NYCRR § 207.38.
- ✅ WD vs. P&S split stated with facts and supporting exhibits.
- ✅ Liens/expenses documented (Medicare/Medicaid/hospital; funeral/medical).
- ✅ Consents/waivers or Citation to the correct parties.
- ✅ Proposed decree addresses minors/blocked accounts, liens, distribution, receipts.
- ✅ NYSCEF filing completed; any required originals mailed per county protocol.
- ✅ Post-decree tasks calendared (escrow, distributions, receipts & releases).
Wrongful Death Petition in New York County Surrogate Court – FAQs
The duly appointed executor or administrator files it in the Surrogate’s Court where the estate is pending.
Wrongful death proceeds bypass the Will and are paid directly to distributees in shares set by the court based on pecuniary loss. Pain & suffering proceeds belong to the estate, may pass by Will (or intestacy), and are subject to estate creditors and fiduciary commissions.
The court looks at pecuniary loss (dependency, ages, expected years of support, earning history). Kaiser is a common starting point; the court may deviate when equity requires.
Yes. The Surrogate still approves allocation and distribution and issues the decree governing who gets what.
Affidavit of the personal representative; attorney affidavit detailing services/fees; retainer/closing statement; settlement documents; lien proofs; funeral/medical bills; consents/waivers (or request for Citation); and any proposed blocked account/guardianship terms for minors.
As a general rule, WD proceeds are not estate assets and are not includible in the decedent’s taxable estate, whereas P&S proceeds are includible. Income-tax treatment and lien issues can be fact-specific—address them in your schedules and proposed decree.
RK Law can assist you with Wrongful Death Petition in New York County Surrogate Court.
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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