by: Begley Law Group

by Thomas D. Begley, Jr., Esquire, CELA

New Jersey wrongful death cases can be complex.  A number of issues arise and the statutes are not always clear.  This article will discuss several important considerations.  Cases under the Wrongful Death Act have two components.  One is the wrongful death component, and the other is the survival claim.  Each is treated differently for many purposes.



Who can be the Plaintiff in a New Jersey wrongful death case? If there is a Will, the Executor would be the Plaintiff.  If there is not a Will, an Administrator ad Prosequendum must be named to bring the action on behalf of an estate.  That action may be brought in the Surrogate’s Court of the County where the Intestate resided or, if he/she lived outside the State, the Surrogate’s Court in which the accident resulting in the death occurred.  The role of the Administrator ad Pros is somewhat confusing.  The Surrogate issues Letters of Administration ad Prosequendum.  The Letters give the authority to the Administrator ad Pros to bring the action and institute proceedings or make a claim, and the litigation may be pursued.


Payment of the Survival Claim

The payment of the survival claim is made either to the Executor of the estate, if there is a Will, or to the Administrator of the estate, if there is no Will.  Payment cannot be made to the Administrator ad Pros.  This is because the Administrator ad Pros actually has no authority over the estate.  If the Plaintiff died without a Will and there is no Executor, an Administrator of the Estate must be appointed.  The duties of the Administrator of the Estate are much more extensive than the authority of the Administrator ad Pros.


Release of Survival Claim

The Release of the survival claim must be signed by the Executor of the estate, if there is a Will, or the Administrator of the estate, who must be appointed by the County Surrogate if there is no Will. Again, the Administrator ad Pros has no authority to sign the Release.



A question arises as to whether a bond is required with respect to the survival claim under the Wrongful Death Act. Generally, if there is a Will the Executor, by terms of the document, is not required to post a bond.  However, the Administrator of an estate does have to post a bond, unless this requirement is waived by the Court.


Survival Claim Distribution

How are the monies recovered under the survival claim ultimately distributed?  The check from the Defendant or the law firm is written to the estate.  The estate then distributes the funds in accordance with the Will, if there is a Will, and if not, then under the terms of the New Jersey Intestacy Act.



If the Decedent has creditors, the funds recovered under the survival claim are subject to claims of those creditors. Creditors have a right to file claims against the estate of the Decedent.


Federal Estate Tax

If the recovery is extremely large, it could be subject to federal estate tax.  In 2018, the exclusion from the federal estate tax is $11,180,000. Anything less than that amount is not subject to federal estate tax.


State Estate Tax

The New Jersey estate tax has been repealed as of January 1, 2018.  However, the New Jersey inheritance tax remains in effect.  If the beneficiaries of the estate are not the spouse or lineal ascendants or descendants, then the New Jersey inheritance tax would apply to the survival claim portion of the estate.


Wrongful Death Claim

If the Decedent left dependents, including a spouse and/or children, the award would be divided by Court Order.  If the Decedent left no dependents, then the spouse and descendants would share equally.  This means that if a husband died leaving a spouse and three children, the spouse and each child would receive 25%.  If there were no spouse or descendants, then the wrongful death claim would be distributed pursuant to the terms of the Intestate statute.


Under the wrongful death claim, creditors of the Decedent have no claim.  However, creditors of the wrongful death claim recipients would have a claim. There would be no federal estate tax, New Jersey estate tax or New Jersey inheritance tax against the wrongful death claim.


Court Order Factors

Factors that the Court considers in determining Wrongful Death Act claims include age, physical and mental condition, educational requirements, financial conditions, and other means of support.  If a jury makes the determination, it does so as the jury deems fair.  Under the New Jersey Intestate statute, assets of an estate are divided as follows:


Spouse and parent(s), but no children:

Spouse:  the first 25% (but not less than $50,000 nor more than $200,000) plus three-fourths of the balance

Parent(s):  One-fourth to parent(s)


Spouse and children of the decedent, all of whom are also children of the spouse (and spouse has no children by any other relationship)


Spouse, no children or surviving parents of the decedent:                                                        Spouse:  100% of estate


Spouse and children of decedent, some of whom are not children of spouse:                      Spouse:  the first 25% (but not less than $50,000 nor more than $200,000) plus one-half of the balance

Children of decedent:  one-half


Spouse and stepchildren (children of Spouse who are not decedent’s children):                        Spouse:  100%


No spouse or domestic partner:                             

Descendants by representation

Parents:  Decedent’s parents share equally.  If only one parent survives, that parent receives the remaining estate.

Siblings or their descendants by representation


Descendants of grandparents

Stepchildren or their descendants by representation


NOTE:  Shares of predeceased children pass to descendants by representation.