Call Us Today - It's Free!

Fatal Work Injuries: What Families Need to Know About Comp Claims vs Wrongful Death


Difference Between a Workers’ Compensation Death Claim and a Wrongful Death Claim

In New York State, a workers’ compensation death claim and a wrongful death claim are not the same. You can have a death claim that is both a workers’ compensation death and a wrongful death. You can also have both claims in New York State based on the same death or the same incident.

You are entitled to your workers’ compensation benefits. Also, your estate and your family are entitled to make a claim for workers’ compensation if your death is work-related, and your estate and family are allowed to sue the person who was at fault for your death.

Who Can File a Workers’ Compensation Death Claim?

Understanding the terms decedent and claimant is helpful. If someone dies as a result of an incident at work, the person is called the decedent in workers’ compensation.

The term claimant refers to the surviving family: spouse, children, estate. The claimant would be able to make a claim against the workers’ compensation case.

Benefits Available to Surviving Family Members

Medical payments up until the date of the accident are paid, as well as any medical costs due to the death. Depending on where the decedent lived in New York, funeral costs of $8,000 to $12,000 are also an entitlement.

The spouse and the children would be the people who would be entitled to death benefits. A spouse is entitled to receive ongoing benefits for their lifetime. If they remarry, the benefits stop two years after they remarry. If they do not remarry, then they can receive benefits for a lifetime.

Any children under the age of 18 can receive benefits. Children between the ages of 18 to 23 would be entitled as long as they are attending school full-time. Once the child in school turns 24, they are no longer entitled to benefits.

An adult disabled child would have to be totally disabled to be entitled to a lifetime of benefits from the insurance company. If there is no spouse or children, then the estate can make the claim.

Benefit Amounts

The weekly benefits are based upon the wages of the decedent at the time of the person’s death.

Decedent Benefits Example of $900 weekly income
Spouse, no child(ren) 2/3 $600
Spouse with child(ren) 1/3 $300
One Child  1/3 $300
Two Children 1/3 $150 each
Three Children 1/3 $100 each


As each child ages out, then the benefits for the younger children increase. When one child ages out, the benefit would increase to $150 for the two remaining children. When the second oldest child ages out, the benefit for the youngest child would be $300.

After all the children age out, then the spouse, if not remarried, receives the full benefit of $600. If there are no spouse and no children and the parents of the deceased child can show that they were financially dependent on that child, they can receive benefits. There is a $50,000 death benefit to an estate where there are no beneficiaries.

For more information on Worker’s Compensation Issues In New York, an initial consultation is your next best step. Get in touch with our workers comp lawyers by calling our office. Book a free consultation today.

  • bronx
  • larchmont
  • mount vernon
  • ossining
  • port chester
  • westchester
  • white plains
  • yonkers