Visitor Question

Who gets settlement money?

Submitted By: Leah (New York)

Here’s the situation in a nutshell: Sister was administrator of mother’s estate. Sister filed a malpractice lawsuit with brother and herself as beneficiaries. Brother died before the settlement, leaving a spouse and no children. Brother resides in another state from sister and the state of the lawsuit. Brother left no will.

Is the spouse of the deceased brother entitled to any money from the settlement? What are the laws concerning the proceeds from a malpractice settlement in a situation like this? Thank you for any information you can provide.

Disclaimer: Our response is not formal legal advice and does not create an attorney-client relationship. It is generic legal information based on the very limited information provided. Do not rely upon the information in our response, or anywhere else on this site, when deciding the proper course of a legal matter. Always get a personalized case review from a local attorney.


Dear Leah,

It is our policy here at not to interfere with the attorney-client relationship. To do so would be inappropriate. If you are presently represented by an attorney, your interests would be best served by heeding your attorney’s advice and counsel.

For purposes of this answer we will presume the case was filed as a wrongful death lawsuit based on medical malpractice. With that said, your sister cannot name herself and her brother as “beneficiaries” of the lawsuit.

Additionally, the State of New York does not permit a family member to file a wrongful death lawsuit unless the family member is also the court appointed personal representative of the deceased person’s estate.

The wrongful death lawsuit filed may seek damages for losses suffered by the mother’s heirs, devisees, or beneficiaries under the mother’s will. If the lawsuit is successful and compensation is awarded by the court, the personal representative will act as a trustee for the surviving family members to whom the proceeds belong.

To answer your question about the spouse of the deceased brother, the answer is Yes. With the exception of the State of Louisiana, in all other states the surviving spouse may be considered an heir, and thus entitled to proceeds which might have been awarded to the late husband.

For more information about New York State Probate Laws go here.

Learn more here: Wrongful Death Lawsuits

The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from a licensed attorney.

Find a local attorney to give you a free case review here, or call 888-972-0892.

We wish you the best with your claim,


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