Death is awful for the loved ones we leave behind. And when a sudden accident that could have been prevented is the reason for the death, it’s hard to move on afterwards. Plus you have to deal with all the funeral expenses and any medical bills that were left behind. You need help. You want compensation for your loss. You want justice and you want it today.
The legal questions are the last thing most families want to think about while making funeral arrangements and trying to manage everyday tasks while devastated. Those legal questions matter, however, and they have deadlines. Evidence that establishes liability disappears quickly. Insurance carriers begin their own investigations within days. Witnesses move on. Cell phone records get overwritten. The choice to involve an attorney early does not mean rushing to court. It means having someone in your corner who is doing the work of preserving the case while the family focuses on grief and on each other.
That’s when you turn to the Law Offices of Anthony Carbone. We understand how this loss is affecting you and your family. Under New Jersey wrongful death law, the person’s family member have a right to any financial compensation for the loss of their loved one’s income as well as any funeral expenses, pain and suffering, and any other damages that came as a result of the death.
The Two Separate Cases That Arise From One Death
New Jersey law treats a death from another party’s negligence as creating two distinct legal claims. The Wrongful Death Act, codified at N.J.S.A. 2A:31-1 and following, compensates the surviving family members for the economic loss they suffer from the decedent’s death. The Survival Act, codified at N.J.S.A. 2A:15-3, allows the estate to recover damages the decedent could have recovered if she had lived, including pain and suffering between the moment of injury and the moment of death.
These are different cases brought together in one lawsuit. They have different beneficiaries, different damages, and different evidentiary requirements.
Wrongful death damages focus on what the family lost in financial terms. The income the decedent would have earned and contributed to the household. The services the decedent provided, including childcare, household tasks, transportation of family members, and care of elderly relatives. Loss of guidance, counsel, and companionship for surviving children, calculated as the financial value of those contributions rather than as raw emotional damages. The grief and emotional suffering of surviving family members is generally not recoverable under the wrongful death portion of the case, which surprises many families.
Survival damages address what the decedent experienced before death. If the decedent survived for some period after the injury, the estate can recover for the pain and suffering she endured during that time. Medical bills incurred between injury and death are recoverable under the Survival Act. Lost wages during that period, when applicable, are also recoverable.
Please remember that the following people can sue for a family member’s death:
- Immediate family members
- Life partners, financial dependents and putative spouses
- Distant family members
- Anyone who suffers financially because of the accidents
Who Actually Brings the Case in Court
The right to sue under the Wrongful Death Act belongs to the personal representative of the decedent’s estate. The personal representative is the only person with legal authority to file the lawsuit. Family members who are not named representatives have no independent right to sue and must work through the representative.
The personal representative is typically named in the decedent’s will if there is one. If there is no will, the surrogate’s court in the county where the decedent lived appoints an administrator based on the order of priority in the intestacy statute. The surviving spouse usually has first priority. Adult children come next. Parents and siblings follow.
Opening the estate is the first step before any wrongful death lawsuit can be filed. The surrogate’s court process requires the filing of a death certificate, the will if one exists, and a renunciation form from any other family member with equal priority. The process is usually completed within a few weeks of the death.
Choosing the right personal representative matters. The representative will make decisions about the lawsuit, including whether to accept settlement offers and how to allocate any recovery among the family members. In families where relationships are strained, the choice of representative can affect how smoothly the case proceeds. An attorney can help advise on the practical considerations when more than one family member is interested in serving.
Damages in Detail
The total value of a wrongful death case in New Jersey reflects what the family lost economically and what the decedent suffered before death. Economic damages are calculated by financial experts who evaluate the decedent’s earning history, expected work life, education and career trajectory, and the proportion of earnings that would have been contributed to the household. The numbers are not speculation. They are built on the decedent’s actual records and on standard methodologies that economists use in court regularly.
Loss of services and guidance is its own component. A surviving spouse loses the household contributions of the decedent. Surviving children lose parental guidance, education, advice, and the value of household services that the decedent would have provided as the children grew. These losses can extend for years, and the present value of the future losses is calculated using accepted economic methods.
Funeral and burial expenses are recoverable under the wrongful death portion of the case. The amount is generally the actual cost of the services, including the funeral, burial or cremation, headstone, and related items.
Survival damages include the pain and suffering of the decedent from the moment of injury to the moment of death. The size of this component depends on the duration of conscious suffering. A driver killed instantly in a high-speed crash has limited survival damages. A patient who lingered in the ICU for two weeks before dying of complications has substantial survival damages. The medical records, the testimony of treating physicians, and the observations of family members at the bedside all become evidence of what the decedent experienced.
Punitive damages may be available in cases of egregious conduct. New Jersey limits punitive damages to five times the compensatory award or $350,000, whichever is greater, but a strong punitive case sends a message and increases the total recovery substantially. Drunk driving cases, particularly those involving repeat offenders, are the most common context for punitive awards in fatal accident cases.
How Damages Are Distributed Among the Family
A wrongful death recovery is not paid in equal shares to all the people who could file the lawsuit. New Jersey uses a system of intestate succession to determine how the proceeds are distributed. If the decedent had a surviving spouse and children, both share in the recovery, with the spouse typically receiving the larger share. If the decedent had parents and no spouse or children, the parents receive the recovery. Distant relatives or financial dependents who can prove they were dependent on the decedent for support can share in the recovery in limited circumstances.
When the case is settled before trial, the court usually has to approve the distribution. The approval process involves a friendly hearing where the personal representative, sometimes joined by family members, presents the proposed allocation to the court. Disputes among family members can complicate this stage. A separate hearing may be needed to resolve them.
The Survival Act recovery is paid to the estate and then distributed according to the will or the intestacy statute, which may produce a different distribution than the wrongful death recovery. Coordinating these distributions is part of the work of the personal representative and the attorney handling the case.
The Statute of Limitations and Why It Cannot Be Missed
A wrongful death lawsuit in New Jersey must be filed within two years of the date of death. The clock does not run from the date of the accident or injury when the decedent survived for some period before death. It runs from the date of death itself.
Two years feels like a long time when the death is fresh. It passes quickly. Estates take time to open. Investigations take time. Medical records take time to obtain. Witnesses move or become hard to reach. The smart approach is to retain counsel within weeks of the death so the investigation can begin and the deadline can be tracked while the family focuses on its own well-being.
Cases involving public entities follow different rules. When the wrongful death claim involves a state agency, a county, a municipality, or other public entity, the New Jersey Tort Claims Act requires a Notice of Claim within ninety days of the incident. Missing that deadline can eliminate the case before the two-year statute of limitations even becomes an issue. A late notice motion may be filed in some circumstances, but the standard for granting one is high.
Common Causes of Wrongful Death Cases
Motor vehicle accidents are the most common source of wrongful death claims in this state. Fatal crashes on the Garden State Parkway, the New Jersey Turnpike, the Pulaski Skyway, and local streets in Hudson, Essex, and Bergen Counties produce a steady stream of cases each year. Drunk driving, distracted driving, speeding, and reckless lane changes all play significant roles.
Medical malpractice is another major source. Misdiagnosis of heart attacks, strokes, pulmonary embolisms, and infections, failure to monitor patients on dangerous medications, surgical errors, and birth injuries all produce wrongful death cases when the patient does not survive. These cases require expert testimony from a qualified physician and an affidavit of merit filed early in the case.
Premises liability cases produce wrongful death claims when a fall, a fire, a building collapse, or a violent incident on poorly secured property causes a death. Workplace accidents in construction, manufacturing, and the maritime industries also produce these claims, often combined with workers’ compensation issues.
Product liability cases arise when defective vehicles, medical devices, pharmaceuticals, industrial equipment, or consumer products cause fatal injuries. These cases often involve multiple defendants, complex causation evidence, and substantial recoveries when the proof is strong.
A New Jersey Personal Injury Attorney handling a wrongful death case looks at every category of potential defendant. The driver who caused the crash. The owner of the vehicle if different. The employer if the driver was on the job. The bar or restaurant that overserved alcohol under dram shop principles. The manufacturer of any defective equipment. Each layer of potential responsibility adds insurance coverage and recovery options.
Common Mistakes Families Make
Accepting an early settlement offer is the most expensive mistake. Insurance carriers know that families are grieving and exhausted in the weeks after the death. Early offers reflect those vulnerabilities, not the value of the loss. A release signed in the first months wipes out all future claims for a fraction of what the case is worth at full maturity.
Failing to open the estate promptly is another. The lawsuit cannot be filed by anyone other than the personal representative. A delay in opening the estate delays the filing of the case and can put the statute of limitations at risk.
Speaking to insurance carriers without counsel hurts cases more than people realize. The carriers will call within days of the death asking for statements, information about the decedent, and authorizations to obtain records. Their goals do not align with the family’s. Refer all communications to your attorney.
Posting on social media presents the same problems in wrongful death cases that it does in personal injury cases. Defense lawyers monitor public profiles. Photos of family gatherings, vacations taken to cope with the loss, and statements about the decedent can all become evidence. Set accounts to private. Stop posting about anything that touches on the case.
Distributing the decedent’s belongings or settling debts without consulting counsel can also create problems. The estate has its own administrative requirements, and informal distributions before the estate is formally administered can produce tax and creditor complications.
Questions Families Ask
Will I have to testify in court?
Most wrongful death cases settle before trial. Even when a case proceeds to trial, family members rarely have to testify about the painful details. Economic experts, treating physicians, and other witnesses typically carry the bulk of the evidentiary burden. Family testimony, when it occurs, focuses on the relationship with the decedent and the loss of services and guidance, not on the accident itself.
What if the at-fault party had no insurance?
The investigation does not stop at the at-fault driver. Other defendants may be available. Vehicle owners, employers, dram shop defendants, premises owners, and product manufacturers can all be identified through careful work. The decedent’s own uninsured and underinsured motorist coverage can also become a primary source of recovery in auto cases.
Can the criminal case affect the civil case?
A criminal conviction can support the civil case through collateral estoppel. The defendant who pleads guilty or is convicted at trial has admitted or been found to have engaged in the conduct that supports the civil claim. The civil case can proceed regardless of how the criminal case ends, but the criminal conviction simplifies proof of liability.
What about the decedent’s debts and the estate?
The estate has its own obligations under New Jersey probate law. The personal representative is responsible for identifying assets, paying valid creditor claims, and distributing the remainder under the will or intestacy statute. The wrongful death recovery is generally not subject to ordinary creditors of the decedent. The Survival Act recovery may be subject to medical liens and other claims related to the final illness. An attorney coordinates these issues so the family’s net recovery is preserved.
Contact us today for a free consultation and we will help you get the just you need. Click here for more information on wrongful death lawsuits.