One of the initial items that should be considered by a lawyer handling a Florida Wrongful Death case is determining who the proper parties, claimants, and survivors will be.
Florida’s wrongful death provision designates the proper party to bring a wrongful death action in pertinent part as follows:
The action shall be brought by the decedent’s personal representative, who shall recover for the benefit of the decedent’s survivors and estate all damages, as specified in this act, caused the injury resulting in death.
Section 768.20 of the Florida Statutes: This means that the only person that can legally bring a Florida Wrongful Death case is the personal representative.
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Nomination Of The Personal Representative
The initial question about who the plaintiff will be is resolved by the probate court in the nomination of the personal representative. Consideration of the proper claimants and survivors under the action is a more complex question.
First, the estate of the decedent is always a party to a Florida Wrongful Death case. The estate is basically the financial transactions and accounts of the decedent. The estate has to handle accounts payable, checking accounts, credit card companies, loans, mortgages, and other financial accounts that were in the name of the decedent. The estate will also be a claimant in the wrongful death case for all things related to expenses associated with the death of the decedent, like medical and funeral expenses, that are recoverable in the wrongful death case. The estate may also collect for loss of earnings from the date of the decedent’s wrongful injury until the date of death. Following death, all such earnings claims will be transferred as net accumulation claims to the survivor(s).
Survivors Of The Decedent
Other than the estate being a claimant with limited potential to recover certain financial losses, the lion’s share of damages collectable from a Florida Wrongful Death case will be made on behalf of the survivors of the decedent. A surviving spouse from a legal marriage is a survivor under Florida’s Wrongful Death Act. The marriage must be legal and must have occurred prior to his/her death. Florida law does not recognize any common law marriage entered into after 1968 unless the claimant and his spouse are permanent residents of a state that does recognize common law marriage.
What About Divorce?
A divorce that is final will terminate the survivorship status of a spouse. A divorce that is pending, however, does not terminate such status. The court hearing the wrongful death case can consider the fact that the parties were intending to be divorced at the time of death, and this will likely affect the amount of any recovery.
Surviving Children’s Age And Medical Malpractice Wrongful Death
For purposes of Florida’s Wrongful Death Act, children are also survivors of a decedent. The age of the child doesn’t matter UNLESS the wrongful death case is based upon medical malpractice allegations. If the case is a medical malpractice wrongful death case, then only minor children will qualify as survivors.
A minor is defined by the medical malpractice amendments to the wrongful death case as any child under the age of 25. A child of any age may collect for loss of support and services from the date of injury to the date of death with interest. He or she may also recover (regardless of age) for future support and services from the date of death.
If the decedent dies without leaving a surviving spouse, a child of any age may also recover for lost parental companionship, instruction, and guidance, as well as for mental pain and suffering from the date of the decedent’s injury. However, adult children may not recover damages if the death was caused by medical malpractice.
Adopted Children and Step-Children
Legally adopted children may also qualify as survivors under the Florida Wrongful Death Act. Also, a legally adopted child loses its right to be classified as a survivor of the biological parent that gave the child up for adoption. Step-children may not recover from the death of their step-parent.
Parents of A Minor Child
Parents of a minor child may recover in a wrongful death action for the value of support and service from the date of injury to death, future loss of support and services from the date of death, mental pain and suffering from the date of injury, and any medical and funeral expenses paid by the parents. Parents of an adult child may also collect this damage so long as there are no other survivors.
Although there is an action for the wrongful death of a stillborn fetus, it is not considered a death under Florida’s Wrongful Death Act. The test for the wrongful death act is the definition of the term “person,” and the law looks for an independent circulation of blood from the mother.
A blood relative that is also a dependent of a decedent may also have a claim for loss of support and services following a death.
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Joe Zarzaur is a Board Certified Civil Trial Lawyer whose firm is dedicated to promoting community safety since 2007. ZARZAUR LAW’S AREAS OF PRACTICE: Serious Personal Injury, Product Defect, Auto Accidents, Cycling Accidents, Motor Vehicle Accidents, Products Liability, Wrongful Death, Community Safety, Boat and Jet Ski Accidents, Slip and Fall Injuries, and more. Licensed in Alabama and Florida.
If you or a loved one is in need of a FREE legal consultation in regards to your wrongful death case, speak with Zarzaur Law’s Florida Wrongful Death Act experts. Put yourself in the best possible position to receive the justice you deserve. It is also important to consult with a Board Certified Trial lawyer who has the knowledge and experience to help you. We know accidents can be stressful and want to make the process as easy as possible for you. Call Zarzaur Law, P.A. today at (855) Hire-Joe for a free legal consultation or visit www.zarzaurlaw.com.