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On December 29, 2023, Governor Kathy Hochul vetoed Assembly Bill A6698, the Legislature’s second attempt at enacting the Grieving Families Act. It remains to be seen, at the present time, whether the Legislature will attempt to “override” the veto, and whether this bill may still be enacted into law.    

 In 2022, the Legislature passed Senate Bill S74A, the proposed bill entitled the Grieving Families Act, which would have amended, and potentially repealed significant aspects of, New York Estates, Powers, and Trusts Law Sections 5-4.1 and 5-4.3 through 5-4.6, which currently govern wrongful death cases. However, Governor Hochul vetoed the bill on January 30, 2023, noting that the bill, if enacted into law, would have increased insurance burdens on families and small businesses, and further strained healthcare workers and institutions, including hospitals in underserved communities. Its significant changes also could have resulted in confusion for judges,    juries, and litigants, and “protracted discovery and increased litigation costs, potentially upending cases far along in the judicial process.” Despite her veto, Governor Hochul expressed her willingness to amend New York’s wrongful death statute to allow parents to recover emotional damages for the loss of a young child.    

In June 2023, the Legislature passed a revised version of the Grieving Families Act. The bill’s stated purpose, like the previous version, is to “permit the families of wrongful death victims to recover compensation for their emotional anguish.” Under the current law, recovery is limited to pecuniary injuries stemming from the decedent’s death to the persons for whose benefit the action is brought, namely, the decedent’s distributees. While slightly more limited than the original version, the revised Grieving Families Act would still greatly expand the time in which to bring a wrongful death claim, as well as the damages which may be    recovered and the class of persons who may recover those damages.

Specifically, if enacted, the  revised Grieving Families Act will extend the time to file a wrongful death action from two years to three years from the date of the decedent’s death. Second, the Act will allow for family members to receive compensation for non-economic losses if a tortfeasor is found liable for causing a death, and not just pecuniary losses. The Act specifically authorizes recovery for “grief or anguish caused by the decedent’s death,” as well as for “loss of love, society, protection, comfort, companionship, and consortium resulting from the decedent’s death,” none of which are  compensable items of damages under the current law. The revised Grieving Families Act will also greatly expand the class of persons who may recover damages for wrongful death, from distributees of the decedent under current law to “close family members.” It permits the finder of fact to determine which persons are “close family members” of the decedent, “based upon the specific circumstances relating to the person’s relationship with the decedent.” Finally, if enacted, the legislation will “apply to all causes of action that accrue on or after July 1, 2018, regardless of when filed.”  

In vetoing the revised Grieving Families Act, Governor Hochul found that it would “fundamentally alter the legal framework for wrongful death claims in New York by expanding the types of damages that may be recovered, expanding the class of persons who may recover such damages and extending the statute of limitations.” She noted that the bill created “the potential for significant unintended consequences,” including, like the original version, “increased insurance premiums for the vast majority of consumers, as well as risk the financial well-being of our health care facilities – most notably, for public hospitals that serve disadvantaged communities.”

Following Governor Hochul’s veto, the New York State Assembly tabled the bill. It is unclear if the Legislature will attempt to “override” Governor Hochul’s veto at this    time. However, greater than two-thirds of each house of the  Legislature voted to pass the revised Grieving Families Act in the first instance. Accordingly, it would appear as though there may be sufficient votes to “override” the Governor’s veto, if the Legislature chooses to do so.

We will continue to provide updates, including whether the Legislature overrides the veto and enacts the Grieving Families Act, in the coming weeks.