By Michael J. Williams, Esq. and Jeremiah E. Lenihan, Esq.
A “revised” version of the Grieving Families Act was just passed by the New York Legislature, legislation that would completely overhaul wrongful death claims by permitting recovery for emotional damages and expanding the class of persons who can seek recovery for fatality. Governor Hochul vetoed the last three versions of this legislation, including the last version in December 2024.
Since 1847, New York has grounded its wrongful death statute (N.Y. Est. Powers & Trusts Law § 5-4.1) in the pecuniary valuation of damages such as lost wages, lost support, and funeral expenses. The legislature has acted to modify this historic law since at least 1995 and in each legislative session since 2009. The latest effort at amendment, the “Grieving Families Act” (“Act”), seeks to extend the time to file wrongful death lawsuits, broaden the scope of eligible claimants, allow for recovery of uncapped non-economic damages and to retroactively apply these amendments.
Those who followed the earlier versions of this legislation in our prior posts may find the 2025 version familiar. Compare S4423, A6063 with S8485-b/A9232-b/. Despite Governor Hochul’s December 2024 veto of the prior legislation, the 2025 version is an exact carbon copy other than changing the date of accrual for retroactive application from January 1, 2021, to January 1, 2022.
The legislature’s 2024 and 2025 versions of the Act address five core amendments to the wrongful death statute and are accompanied by “Summary of Provisions” and “Justification” sections. These summarized core changes are:
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Section 1 amends Estates, Powers and Trusts Law (“EPTL”) § 5-4.1 to extend the time permitted to bring a wrongful death action to three years. The statute of limitations is presently two years, and the current proposal is less than the three- and one-half years that the legislature proposed in its 2022 version of the Act.
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Section 2 amends EPTL § 5-4.3 to permit recovery of non-economic damages for grief, sympathy and loss of consortium. Current law allows recovery of pecuniary loss only, although a surviving child may also recover the economic value of the “intellectual, moral, and physical training, guidance and assistance” of the deceased parent. The New York Pattern Jury Instruction 2:320 permits no similar recovery for a surviving spouse or parent.
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Section 3 amends EPTL § 5-4.4 to permit recovery by close family members including spouses or domestic partners, children, foster children, step-children, step-grandchildren, parents, grandparents, step-parents, step-grandparents, siblings or anyone acting “in loco parentis” to the deceased person (which is presumed where a minor and an adult cohabitated). Prior versions of the Act proposed a much broader range of plaintiffs and permitted the finder of fact to determine sufficient closeness to the decedent to establish standing.
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Section 4 is identified as amending EPTL §5-4.6 to replace “distributes” with “persons for whose benefit the suit is brought.” To a broader extent, the 2023 and 2025 Acts remove both the term “distributees” and “pecuniary” throughout the text.
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Section 5 states that the Act shall take effect immediately and shall apply to all causes of Action that accrue on or after January 1, 2022. The only change between the 2023 and 2025 Acts was to change the accrual date from January 1, 2021, to January 1, 2022.
In pocket-vetoing the legislature’s 2022 version of the Act on January 30, 2023, Governor Hochul published an op-ed piece in the New York Daily News expressing her concerns. Governor Hochul respected the legislature’s concerns that “valuing lives based on earning potential, reinforces historic patterns of structural inequity and racism.” However, she also cautioned that the legislature’s approach “would dramatically expand beneficiaries, categories of damages, and the statute of limitations.” Governor Hochul opined:
Experts have highlighted concerns that the unintended consequences of this far-reaching, expansive legislation would be significant. It is reasonable to think that the legislation as drafted will drive up already-high health insurance premiums, adding significant costs for many sectors of our economy, particularly hospitals that are still recovering from the pandemic and struggling to stay afloat — including public hospitals that serve disadvantaged communities. This is a question that would benefit from careful analysis before, not after, passing sweeping legislation.
Despite Governor Hochul’s expressed concerns, the 2025 Act’s “Justification” section did not address potential consequences to businesses, particularly in the health care sector. The “Justification” section further declined to address why the statute of limitations should be expanded, why uncapped non-economic damages should be permitted, and why the amendments would apply retroactively.
New York remains an outlier in that its wrongful death statute focuses only on pecuniary losses to value recoveries. The legislature has repeatedly voted to bring New York in line with the majority’s approach with a seemingly well-intentioned, but fundamentally flawed bill. Having not met Governor Hochul’s reasoned requirements, the 2025 Act may soon join its predecessors in meeting the veto pen on the gubernatorial desk. Should the Governor change course, the bill will still face constitutional challenges going forward, particularly as to retroactive application in the absence of legislative findings.
