Position Statement – 2023

A.6698 (Weinstein)/S.6636 (Hoylman-Sigal)

Support

The Women’s Bar Association of the State of New York (“WBASNY”) supports A.6698/S.6636, which would amend the Estates, Powers and Trusts Law, (EPTL) Section 5-4.3 in relation to payment and distribution of damages in wrongful death actions. This law, which was enacted over 110 years ago, recognizes mostly pecuniary injuries as damages for wrongful deaths in New York. This category of damages, which is the quantifiable calculable gross income at the time of a person’s death, was created as a means to value the life of a working man and breadwinner. The computation is based upon the decedent’s age, health, earning capacity and life expectancy. The amendment of this section would right the wrong of historical discrimination against women, children, infants, homemakers, minorities, the infirm, the mentally ill, the disabled and the elderly.

The wrongful death statute was included in the Real Property Law of 1896 which became the Decedent’s Estate Law in 1909, and in 1966 became the Estates Powers and Trusts Law. This law places value on an employed or self-employed person while placing little to no value on everyone else.

Due to the gender pay gap, there continues to exist a significant pay disparity between men and women. Accordingly, when “computing” the worth of a woman as against a man in the same job, the man will more often than not have earned more. Thus, the damages computation in a wrongful death claim of a wage earner, in general, will frequently be larger for a man than for a woman.

Also, when using the current calculation method for damages in New York State, a working person who earns a salary and who has children under the age of 21 years old is “worth more” than an infant, homemaker, child, disabled person, mentally ill person or an elderly person. The current law perpetuates the discrimination.

The damages for the wrongful death of a person should be measured equitably. One person’s life should not be “worth” more than anyone else’s life. Damages that are currently “valueless” under the current law are emotional distress, mental suffering, loss of companionship, anguish, sorrow, grief, loss of affection, loss of society, loss of comfort, and loss of enjoyment of life. More than forty-one (41) states have enacted a “fair and equitable” wrongful death statute. New York should not be in the minority on this basic right. By enacting the proposed statute, the discrimination inherent in New York State’s current wrongful death statute would place the life of all people on equal footing when measuring the value of a life.