Wrongful death in New Jersey: who can file and the deadlines

Two kinds of claims after a death

New Jersey law treats a death caused by negligence or wrongdoing as giving rise to two related claims, and they are usually filed together.

The first is the wrongful death claim under the Wrongful Death Act, N.J.S.A. 2A:31-1 and following. It belongs to the family members who lost financial support and services. The second is the survival claim under N.J.S.A. 2A:15-3. It belongs to the estate and covers what the person who died could have recovered if they had lived, such as their medical bills and the pain and suffering they experienced before death.

A wrongful death claim exists only if the person who died would have had a valid injury claim had they survived. So the same questions about fault that apply in a car crash, medical malpractice or workplace case also apply here.

Who can file

Family members do not each file their own lawsuit. Under N.J.S.A. 2A:31-2, the case is brought by a representative. If there is a will, that is usually the executor. If there is no will, a family member typically asks the county Surrogate to appoint them as administrator ad prosequendum, a limited role that exists to bring the lawsuit.

Getting this appointment is often one of the first practical steps. Your county Surrogate's office handles it, and a lawyer can help with the paperwork.

Who receives the money

Under N.J.S.A. 2A:31-4, wrongful death recovery goes to the people who would inherit the person's property if there were no will. Generally that means a surviving spouse or domestic partner and children first, then parents, then more distant relatives. When there is a surviving spouse and descendants, the statute sets out how they share.

Survival claim recovery is different: it belongs to the estate and passes under the will or, if there is none, under intestacy rules.

What damages cover

New Jersey's wrongful death damages are limited to pecuniary losses, meaning financial loss, under N.J.S.A. 2A:31-5. That includes lost income the person would have contributed, plus hospital, medical and funeral expenses. Courts also allow the financial value of the services, care, advice and guidance the person would have provided, including to children.

What the Wrongful Death Act does not compensate is the family's grief or emotional loss. Bills to change that have been introduced in Trenton over the years, so a lawyer can tell you whether anything has passed that affects your case.

The survival claim can cover the person's own conscious pain and suffering before death, their medical bills and lost earnings up to death. The same expense cannot be recovered twice across the two claims.

• Lost financial support and income
• Value of household services, care and guidance
• Medical and hospital bills
• Funeral and burial costs
• Pain and suffering before death (survival claim)

The deadline

Under N.J.S.A. 2A:31-3, a wrongful death action generally must be filed within two years after the death. Note that it runs from the death itself, not the earlier injury.

There is an important exception. If the death resulted from murder, aggravated manslaughter or manslaughter, and the person responsible was convicted, found not guilty by reason of insanity, or adjudicated delinquent, the claim can be brought at any time.

Survival claims and claims against public entities can have different timing rules. If a town, county, state agency or public hospital may be involved, speak with a lawyer quickly.

Common causes of wrongful death claims

Many wrongful death cases grow out of car and truck crashes, pedestrian accidents, medical malpractice, unsafe property conditions, defective products and workplace incidents. When the death happened at work, the workers' compensation system usually limits claims against the employer, though claims against other responsible parties may still be possible.