As of January 30, 2023, Governor Hochul vetoed the New York State Grieving Families Act, which would have overturned century-old law that bars plaintiffs in wrongful death suits from recovering damages to compensate them for grief, pain and suffering allegedly caused by the death of a loved one. The “pocket veto” resulted when Governor Hochul declined to sign the legislation within 30 days after being sent to her.

The Act, by vesting un-related persons and distant relatives with a potential right of recovery, also would have dramatically inflated the universe of wrongful death claimants, in addition to increasing the wrongful death limitations period from two to 3.5 years. Because the Act garnered significant support in the legislature and from advocacy groups, and attention in the press, it may be revived in the near future.

New York’s Estates, Powers and Trusts Law (“EPTL”), Section 5, Part 4, governs wrongful death lawsuits. Currently, wrongful death damages are limited to an estate distributee’s “pecuniary injuries” resulting from the death, and punitive damages if otherwise available. As stated in the Pattern Jury Instructions (2:320), distributees may recover the value of services (e.g., household chores) and direct financial support decedent would have provided. “Pecuniary injuries” exclude mental anguish and pain from loss of the decedent’s companionship.

As defined in the EPTL, a “distributee” is “a person entitled to take or share in the property of a decedent under the statutes governing descent and distribution”; only a “distributee” may recover wrongful death damages. As a result, the universe of potential wrongful death claimants is relatively limited. For example, in DeLuca, an intestate decedent without spouse or children was survived by a mother and sister. See 287 A.D.2d 222 (2d Dep’t 2001). Only the mother was eligible to recover; the sister was eligible only if the mother predeceased or renounced her share.

The proposed, now-vetoed Act would have permitted wrongful death claimants to recover not only pecuniary loss, but also dramatically larger damages for grief or anguish caused by the death, any disorder caused by such grief or anguish, and the loss of decedent’s love, society, companionship and consortium. In effect, each wrongful death claimant’s unique emotional pain from losing someone they loved would have been a compensable injury with a value fixed by the jury.

Furthermore, under the proposed legislation, any of the decedent’s “surviving close family members,” a group determined by the factfinder “based upon the specific circumstances relating to the person’s relationship with the decedent,” could have recovered damages. The proposed Act did not further define “surviving close family members,” but stated they “may include, but are not limited to, spouse or domestic partner, issue, parents, grandparents, step-parents and siblings.” For example, in DeLuca, above, an intestate decedent without spouse or children was survived by a mother and sister. Under current law, the sister could not recover unless the mother predeceased or renounced. Under the Act, both would have been eligible to recover and could be plaintiffs in the wrongful death suit.

Given the support for the Act and publicity, it may be revived in the near future. Shortly before vetoing the legislation, Governor Hochul published an op-ed criticizing its scope. She proposed a compromise: extending the right to recover grief and anguish only to parents of a deceased child, and excluding medical malpractice claims from the amendment’s scope. Governor Hochul’s proposal suggests revised legislation could address the proposed Act’s lack of guidance as to who is a “close family member.” So loosely defined, the Act would likely have led to the crowding of captions (e.g., by unrelated persons claiming decedent was “like” family) and litigation over the definition.

Harris Beach attorneys will continue following the proposed law and report developments. If you have questions on this subject or related matters, please reach out to attorneys Abbie Eliasberg Fuchs at (212) 313-5408 and afuchs@harrisbeach.com; Daniel R. Strecker at (212) 912-3513 and dstrecker@harrisbeach.com; Andrew J. Orenstein at (212) 313-5473 and aorenstein@harrisbeach.com or the Harris Beach attorney with whom you most frequently work.

This alert is not a substitute for advice of counsel on specific legal issues.

Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as Washington D.C., New Haven, Connecticut and Newark, New Jersey.