Reviewed by Laurence P. Banville, Esq.Frequently asked questions
Can you actually sue someone who has already died?
Yes. Under New York Estates, Powers and Trusts Law (EPTL) §11-3.2, a cause of action that existed against a person at the time of their death survives and can be brought against their estate. The lawsuit names the estate or its administrator/executor as the defendant, not the deceased individual.
What is the deadline to sue a deceased person's estate in New York?
The standard statute of limitations still applies. For most personal injury survival actions in New York, you have three years from the date of injury. If you are also pursuing a wrongful death claim under EPTL §5-4.1, that separate two-year clock runs from the date of death. Missing either deadline can bar your claim entirely, so act quickly.
What if the deceased person had no will or named estate representative?
If no executor or administrator has been appointed, New York law allows the court to appoint one, or allows an interested party to petition the Surrogate's Court to open an estate proceeding. Your attorney can assist with this process so there is a legal party to name in the lawsuit. The existence of assets in the estate determines whether a recovery is practical.
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 person's distributees (spouse, children, dependents) for their own losses—such as lost financial support and grief-related damages. A survival action under EPTL §11-3.2 recovers damages the deceased victim could have claimed for their own pain, suffering, and economic losses before death. Both claims can often be brought together when a death results from another party's negligence.