(a) The damages, as prescribed by 5-4.3, whether recovered in an
action or by settlement without an action, are exclusively for the
benefit of the decedent's distributees and, when collected, shall be
distributed to the persons entitled thereto under 4-1.1 and 5-4.5,
except that where the decedent is survived by a parent or parents and a
spouse and no issue, the parent or parents will be deemed to be
distributees for purposes of this section. The damages shall be
distributed subject to the following:
(1) Such damages shall be distributed by the personal representative
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, at such
time and on notice to all interested persons in such manner as the court
may direct. If no action is brought, such determination shall be made
by the surrogate of the county in which letters were issued to the
plaintiff; if an action is brought, by the court having jurisdiction of
the action or by the surrogate of the county in which letters were
issued.
(2) The court which determines the proportions of the pecuniary
injuries suffered by the distributees, as provided in subparagraph (1),
shall also decide any question concerning the disqualification of a
parent, under 4-1.4, or a surviving spouse, under 5-1.2, to share in the
damages recovered.
(b) The reasonable expenses of the action or settlement and, if
included in the damages recovered, the reasonable expenses of medical
aid, nursing and attention incident to the injury causing death and the
reasonable funeral expenses of the decedent may be fixed by the court
which determines the proportions of the pecuniary injuries suffered by
the distributees, as provided in subparagraph (1), upon notice given in
such manner and to such persons as the court may direct, and such
expenses may be deducted from the damages recovered. The commissions of
the personal representative upon the residue may be fixed by the
surrogate, upon notice given in such manner and to such persons as the
surrogate may direct or upon the judicial settlement of the account of
the personal representative, and such commissions may be deducted from
the damages recovered.
(c) In the event that an action is brought, as authorized in this
part, and there is no recovery or settlement, the reasonable expenses of
such unsuccessful action, excluding counsel fees, shall be payable out
of the assets of the decedent's estate.