Who Can Sue on Behalf of a Deceased Person

Who has the legal right to file

When a person dies and there is a claim to pursue — for example, a wrongful death or an injury claim the person had before passing — New York does not let just any grieving relative walk into court. The claim is brought by the personal representative of the estate. That is either:

• The executor named in the deceased person’s will, once the will is admitted to probate; or
• An administrator appointed by the Surrogate’s Court when there is no will or no named executor able to serve.

Until the Surrogate’s Court issues “letters” (letters testamentary or letters of administration), no one has authority to sue on the estate’s behalf. This is one of the most common reasons a strong case stalls early, so it is worth handling promptly. EPTL §5-4.1

Wrongful death vs. the deceased person’s own injury claim

Two different claims can arise from the same death, and both are controlled by the representative:

• Wrongful death. This compensates the surviving family for their losses — lost financial support, lost services, and funeral and medical expenses. The representative files it, but the recovery is distributed to the statutory distributees (typically a spouse and children). New York generally allows two years from the date of death to file. EPTL §5-4.1
• Survival action. This is the claim the deceased person could have brought if they had lived — including the conscious pain and suffering they endured before death. It belongs to the estate, and recovery passes through the estate to heirs.

Both are filed by the same personal representative, which is why getting that person properly appointed matters so much.

Where the surviving family fits in

If you are a spouse, child, or parent of the person who died, you are usually the one who benefits from a wrongful death recovery — but you typically receive it as a distributee, not as the named plaintiff. The representative often is a family member, and family members can serve as administrator. So in practice the surviving relative and the person filing are frequently the same individual; the law just requires the formal appointment first.

If relatives disagree about who should serve, the Surrogate’s Court decides based on a statutory order of priority, generally favoring the surviving spouse and then close relatives.

Deadlines you cannot afford to miss

New York deadlines are strict and start running quickly:

• Wrongful death claims generally must be filed within two years of the date of death. EPTL §5-4.1
• The underlying injury claim may carry its own statute of limitations — for example, three years for many personal injury claims. CPLR §214
• If a government entity (a city, the state, or a public hospital) may be responsible, a Notice of Claim is usually due within 90 days, with a shorter overall window to sue. GML §50-e

Because the estate must be opened before suit, and appointment can take time, starting early protects the claim.

What to do next

If you believe a loved one’s death or pre-death injury was caused by someone else, the first practical steps are to locate any will, identify who can serve as representative, and preserve evidence before it disappears. An attorney can move the Surrogate’s Court appointment and the injury claim forward at the same time so a deadline does not quietly pass. Outcomes vary case to case, and no result can be promised — but the right to pursue the claim starts with the right person being legally empowered to bring it.

Frequently asked questions