Reviewed by Laurence P. Banville, Esq.Frequently asked questions
Can you sue someone who has already died in New York?
Not directly. Under New York Estates Powers and Trusts Law §11-3.2, civil claims survive a person’s death and transfer to their estate. You must name the deceased’s executor or administrator as the defendant, not the individual. If no estate has been opened, the court can compel the appointment of an administrator before the case proceeds.
What happens to a pending lawsuit when the defendant dies in New York?
If someone you are already suing dies during litigation, the case does not automatically end. Under CPLR §1015, the court will substitute the estate’s personal representative as the defendant and the action continues. You or your attorney must file a motion to substitute within a reasonable time to keep the case alive.
How long do you have to file a claim against a deceased person's estate in New York?
The statute of limitations depends on the underlying claim. For wrongful death, New York’s EPTL §5-4.1 gives you two years from the date of death. For a survival action — claims for pain and suffering the deceased experienced before dying — the original limitations period applies, tolled from the date of death. Additionally, New York Surrogate’s Court procedures may require you to file a creditor’s claim against the estate within certain deadlines set by the executor.
What is the difference between a wrongful death claim and a survival action in New York?
A wrongful death claim under EPTL §5-4.1 compensates the deceased’s distributors (spouse, children, dependents) for their financial losses caused by the death. A survival action under EPTL §11-3.2 compensates the estate itself for damages the deceased suffered before death — such as medical bills and conscious pain and suffering. In many New York cases, both claims are pursued simultaneously against the responsible party’s estate or insurer.