- People often die as the result of an accident or negligence by others.
- Many times, these victims die without a Last Will.
- There are two separate and distinct causes of action in New Jersey that provide relief for a wrongful death action as part of the decedent’s estate administration.
- These statutes are N.J.S.A. 2A:31-2 (Wrongful Death Act) and N.J.S.A. 2A:15-3 (Survival Act).
Understanding the NJ Survival Act
The plain language of each act must be reviewed and understood in your role as executor or administrator. The New Jersey Survival Act provides:
Executors and administrators may have an action for any trespass done to the person or property, real or personal, of their testator or intestate against the trespasser, and recover their damages as their testator or intestate would have had if he was living.
The plain language of the Survival Act is clear in that it provides “administrators” with a cause of action for injury to their decedent’s “person or property”. N.J.S.A. 2A:15-3. An administrator essentially steps in the shoes of his decedent to maintain any and all causes of action his decedent could have pursued while “living”, the key word being “living”. For example, if I was owed $1,000 from my employer for unpaid wages before I died, my administrator could bring an action to recover the $1,000 debt.
Conversely, the Wrongful Death Act provides:
Every action commenced under this chapter shall be brought in the name of an administrator ad prosequendum of the decedent for whose death damages are sought, except where decedent dies testate and his will is probated, in which event the executor named in the will and qualifying, or the administrator with the will annexed, as the case may be, shall bring the action.
A wrongful death claim differs from a survival claim in two ways: (1) damages are sought for the “death” of a person; and (2) the action must be brought in the name of an “administrator ad prosequendum.” N.J.S.A. 2A:31-2. The damages are limited to the “pecuniary advantage which would have resulted by continuance of the life of the deceased.” Recovery under the Wrongful Death Act, while distributed through the decedent’s estate by its representative, is not subject to estate taxes or creditors.
While letters of administration ad prosequendum provide plaintiffs standing to pursue wrongful death claims – without letters of general administration – they do not have standing to pursue survival claims.
If the estate does not have a legal representative, it cannot act to pursue claims (similar to a corporation). Thus, a proper party must apply to the surrogate’s court for letters of general administration “on the estate of the decedent” if he intends to bring a survival claim on its behalf. N.J.S.A. 3B:10-1. In the same regard, wrongful death claims are intended to benefit a class, i.e., heirs. The heirs cannot pursue wrongful death claims individually. They must be collectively represented by an administrator ad prosequendum.
To discuss your NJ estate administration and probate matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com. Please ask us about our video conferencing consultations if you are unable to come to our office.
By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Estate Administration and Probate Attorney