Legal Question in Medical Malpractice in New York

Re: medical malpractice wrongful death case

Generally the surviving spouse gets appointed as the administrator of the estate and brings the action under a single index number on their own behalf and that of the estate. However getting appointed means getting letters of administration from the surrogates court which does involve fees and filings. As to the structure of the award in the event of a settlement as apposed to a verdict, a settlement can be structured in many ways but any portion of the settlement that is specifically designated for the wrongful death will be part of the estate. Typically there is no such thing as a claim for damages to a spouse in a wrongful death action separate from the damages suffered by the estate of which presumably the spouse will be a significant beneficiary. Because no cause of action for loss of consortium can be maintained in conjunction with a suit for wrongful death the simple answer is that all of the damages in the suit you are contemplating will be part of the estate.