In this proceeding, Jane Prater ("Jane"), the decedent's surviving spouse and executrix under his will, has petitioned the Court for a decree granting the following relief: (1) authorizing her to compromise and settle a claim for the decedent's alleged wrongful death against Westchester County Health Care Corporation and Westchester Medical Center for the sum of Four Hundred Twenty-Five Thousand Dollars ($425,000.00); (2) allocating the entire recovery to the cause of action for wrongful death; (3) modifying the limitation and restriction in her letters testamentary issued on December 6, 2010 so as to allow for the compromise and settlement; (4) judicially settling Jane's account; (5) authorizing Westchester County Health Care Corporation and Westchester Medical Center pay the law firm of Carol L. Schlitt, Esq. out of the proceeds of the proposed settlement the sum of One Hundred Eighteen Thousand Fifty-Six Dollars and Eight-Six Cents ($118,056.86) as and for attorney's fees, together with disbursements in the amount of Two Thousand Seven Hundred Seventy-Two Dollars and Fifty-Four Cents ($2,772.54); (6) directing that Jane receive the balance of the settlement proceeds, Three Hundred Four Thousand One Hundred Seventy Dollars and Sixty Cents ($304,170.60), as the only distributee of the decedent having sustained a pecuniary loss; and, (7) authorizing Jane to execute and deliver a full and final release to conclude the underlying wrongful death action upon payment of the sums outlined above.

The decedent died testate on December 8, 2010. His will, dated November 21, 2003, was admitted to probate by decree dated December 6, 2012. The will contains three (3) separate specific bequests of personal property to individuals other than Jane. She is left the residuary estate and is nominated to serve as the sole executrix.

The decree granting probate restrains Jane from comprising any cause of action and from collecting any proceeds derived from it without leave of the Court.

The decedent's certificate of death indicates that he was severely injured on November 20, [*2]2010 when he fell from a tree stand. He died on December 8, 2010 while at Westchester Medical Center. The cause of death is described as "lumbar spine fracture treated by surgical fusion; cardiac arrest following debridement of operative site."

Jane retained The Schlitt Law Firm ("Schlitt") via retainer agreement on March 8, 2011. Schlitt commenced an action on November 13, 2012 grounded in alleged medical malpractice on behalf of the estate in Supreme Court, Westchester County against Westchester County Health Care Corporation and Westchester Medical Center. Discovery was completed following the exchange of pleadings and the action was designated ready for trial. Settlement discussions ensued. The defendants have offered to settle the action for Four Hundred and Twenty-Five Thousand Dollars ($425,000.00). Jane asks this Court to approve the settlement as proposed and to allocate the entire sum to the claim for wrongful death. Jane requests distribution of the net proceeds to her after deducting counsel fees and disbursements.

The decedent and Jane were married at the time of his death. The decedent was also survived by two (2) adult sons from a previous relationship: Christopher Prater ("Christopher"), now 42, and Jesse Prater ("Jesse"), now 37. Christopher resides in Millbrook, New York, and Jesse lives in Brooklyn, New York. Neither son received a monetary bequest under decedent's will. They have, however, filed objections to the proposed distribution of the entire net proceeds of the wrongful death action ($304,170.60) to Jane. They urge the Court that they are entitled to share in those proceeds pursuant to EPTL §5-4.3(a) because they have sustained pecuniary injuries resulting from their father's death. They allege they have lost financial support, parental guidance and counseling, along with loss of love, affection, nurturing and inheritance.

Christopher and Jesse object to the legal fees requested by the Schlitt Law Firm, object to having their respective shares in anticipation of the wrongful death settlement reduced by the legal fee to be approved and that Jane should absorb the entire responsibility of such fee from her share. Finally, Jesse claims he advanced One Thousand One Hundred Dollars ($1,100.00) towards the decedent's funeral bill for which he should be reimbursed.

Sprinkled throughout their objections are allegations by Christopher and Jesse that their stepmother is reckless, irresponsible, financially independent, a gambler and dipsomaniac. Jane denies their joint affront and asks this Court to reject the objections and accusations.

No objections were filed by either Christopher or Jesse to branches (1) through (3) of the petition. They are granted, there being no opposition.

EPTL §5-4.4(a)(1) governs the distribution of wrongful death proceeds. The statute provides a general outline of how to apportion the proceeds between the decedent's distributees: "Such damages shall be distributed...to the persons entitled thereto in proportion to the pecuniary injuries suffered by them, such proportions to be determined after a hearing, on application of the personal representative or any distributee..." (see Matter of Feld, 153 Misc 2d 615 [Sur Ct, New York County 1992].)

While EPTL §5-4.4 requires that the proceeds of a wrongful death action be distributed to those entitled "in proportion to the pecuniary injuries suffered by them" (EPTL §5-4.4[a][1], the statute does not mandate application of any particular mathematical formula in order to satisfy the "proportionality" concept, especially where equity is not served (see Matter of Duffy, 208 AD2d 1169 [3d Dept. 1994], lv appl den'd 85 NY2d 802 [1995].) To this end, the Surrogate is [*3]vested with discretion and with equitable powers as to the proportional allocation fo wrongful death proceeds (id.).

In this regard, it is settled that adult children are not precluded from sharing in wrongful death proceeds and may state a claim for pecuniary injuries based upon the loss of a parent's nurture and guidance. (Gonzalez v. New York City Hous. Auth., 77 NY2d 663, 669 [1991]; Tilley v. Hudson Riv. R.R. Co., 29 NY 252 [1864].) This includes financially independent adult children of the decedent. (Matter of Loehner, 239 AD2d 468, 469 [2d Dept. 1997].)

Jane, Christopher and Jesse are directed to appear for a hearing to determine the allocation of the wrongful death proceeds on Thursday, March 12, 2015 at 11:00 a.m. Adjournments are only granted with leave of the Court.

On this application, the Court considered the verified petition, account, affirmation in support, five (5) exhibits, verified objections and verified response to objections.

The foregoing constitutes the decision and order of the Court.