When a worker is killed on the job or dies as a result of a work-related injury or illness, the workers’ compensation system provides benefits to the worker’s surviving dependents. These death benefits include weekly cash payments to the spouse and dependent children, a funeral expense benefit, and in some cases a lump-sum payment when there are no eligible dependents.
No amount of money replaces a life. The death benefits under New York workers’ compensation law exist to provide financial support to the families who depended on the worker’s income. Understanding what benefits are available, who is eligible to receive them, and how to file a claim is important for families navigating an extraordinarily difficult time.
Who is eligible for death benefits
Death benefits are paid to the worker’s surviving dependents. The law establishes a priority among eligible dependents. A surviving spouse is the primary beneficiary. If there is no surviving spouse, benefits go to surviving children. If there is no surviving spouse and no surviving children, other dependents — including parents, siblings, grandchildren, and other family members — may be eligible if they were actually dependent on the deceased worker’s income.
A surviving spouse is presumed to be a dependent under the law and does not need to prove actual financial dependency. Children under the age of 18 are also presumed dependents. Children between 18 and 23 may qualify if they are full-time students. Children who are physically or mentally incapacitated may qualify regardless of age if the incapacity began before the child turned 18.
Other family members must demonstrate that they were actually dependent on the deceased worker’s earnings. This requires evidence that the worker provided regular financial support — paid bills, contributed to household expenses, provided housing, or otherwise supported the family member financially. The burden of proof is on the person claiming dependency.
How death benefits are calculated
The weekly death benefit is calculated the same way as disability benefits: two-thirds of the deceased worker’s average weekly wage, up to the statutory maximum. For deaths occurring on or after July 1, 2025 the maximum weekly benefit is $1,222.42. The benefit is tax-free.
If the surviving spouse is the sole dependent, the spouse receives the full weekly benefit. If there are dependent children in addition to the spouse, the benefit is allocated among them according to a statutory formula. The spouse receives a percentage and each dependent child receives a percentage, with the total not exceeding the statutory maximum.
For a surviving spouse with no dependent children, the weekly benefit continues until the spouse remarries or dies. If the spouse remarries, a lump-sum payment equal to two years of benefits is provided, and weekly payments cease. For dependent children, benefits generally continue until the child turns 18, or 23 if the child is a full-time student, or for the duration of the incapacity if the child is disabled.
When there are no surviving dependents
If the deceased worker had no surviving dependents, the workers’ compensation system provides a lump-sum payment of $50,000 to the worker’s estate. This payment is in addition to the funeral expense benefit. It is a fixed amount set by statute and does not vary based on the worker’s wages or the circumstances of the death.
The $50,000 payment to the estate is modest relative to the value of a human life, but it provides some financial benefit to the worker’s heirs. If a third party caused or contributed to the worker’s death, a wrongful death lawsuit may provide substantially more compensation to the surviving family members.
Funeral and burial expenses
Workers’ compensation provides a funeral and burial expense benefit when a worker dies from a work-related injury or illness. The current statutory allowance is in the range of $5,000 to $6,000, depending on the specific circumstances and the applicable statutory provisions at the time of death. This amount covers a portion of the funeral costs but is unlikely to cover the full expense of a funeral and burial in the New York metropolitan area.
The funeral expense benefit is paid directly to the person or entity that incurred the funeral costs. It is separate from the weekly death benefits paid to dependents and separate from the $50,000 estate payment for workers with no dependents.
Filing a claim for death benefits
A claim for death benefits is filed with the Workers’ Compensation Board, similar to an injury claim. The claim should be filed as soon as possible after the death. The surviving spouse, a dependent child, or another eligible dependent can file the claim. The claim must establish that the death resulted from a work-related injury or occupational disease.
If the worker was already receiving workers’ compensation benefits at the time of death and the death was caused by the work-related condition, the transition from disability benefits to death benefits may be straightforward. If the worker was not receiving benefits — if the death occurred suddenly on the job, or if the connection between the death and the employment is not immediately obvious — establishing the claim may require medical evidence linking the cause of death to the worker’s employment.
For deaths resulting from occupational diseases, the connection between the employment and the cause of death may need to be established through medical expert testimony. A worker who developed mesothelioma from decades of asbestos exposure on the job and ultimately died from the disease has a compensable death claim, but the medical evidence must connect the disease to the workplace exposure.
Third-party wrongful death claims
If a third party caused or contributed to the worker’s death, the surviving family members may have a wrongful death lawsuit in addition to the workers’ compensation death benefits. A construction worker killed on a job site may have a wrongful death claim against the property owner or general contractor. A worker killed in an on-the-job vehicle accident caused by another driver may have a wrongful death claim against that driver. A worker killed by a defective piece of equipment may have a products liability wrongful death claim against the manufacturer.
A wrongful death lawsuit provides compensation that workers’ compensation does not: the full pecuniary loss to the surviving family members, including the full value of the deceased worker’s lost future earnings, the value of lost services and guidance, funeral expenses beyond the workers’ compensation allowance, and the conscious pain and suffering the worker experienced before death. For families that lost a primary wage earner, the wrongful death claim may provide far more comprehensive financial support than workers’ compensation alone.
The wrongful death statute of limitations in New York is two years from the date of death. This deadline is shorter than the three-year general personal injury statute of limitations and runs independently from the workers’ compensation filing deadlines. Missing it means losing the claim permanently. If a loved one was killed on the job and a third party may bear responsibility, consult with an attorney as soon as possible.
The workers’ compensation lien in wrongful death cases
When a wrongful death lawsuit is pursued alongside workers’ compensation death benefits, the carrier’s Section 29 lien applies just as it does in non-fatal third-party cases. The carrier has the right to be reimbursed from the wrongful death recovery for the death benefits it has paid. The lien calculation and the proportionate fee reduction work the same way as in any third-party case.
Coordinating the workers’ compensation death benefits claim and the wrongful death lawsuit is essential. The two claims proceed on separate tracks, but they are connected by the lien and by the need to maximize the total recovery for the surviving family. An attorney handling both can ensure the timing, the settlement evaluation, and the lien accounting are managed properly.
How Schwartzapfel Holbrook handles death benefits and wrongful death cases
At Schwartzapfel Holbrook, we handle workers’ compensation death benefits claims and wrongful death lawsuits with the understanding that the surviving family is dealing with both grief and financial uncertainty. Our evaluation begins with the circumstances of the death: whether it occurred on a construction site, in a vehicle accident, from equipment failure, or from an occupational disease or another cause. We file the workers’ compensation death benefits claim with the Board, identify any third-party wrongful death claims, and pursue both to maximize the total recovery for the family.
We are selective about the cases we accept. When we take a case involving a worker’s death, we prepare it with the same thoroughness we bring to every case — because the family that lost a loved one deserves nothing less. Consultations are free. There is no obligation.
Schwartzapfel Holbrook / Fighting For You