Under Florida law, a personal representative (sometimes referred to as an “executor”) has a duty to pursue a wrongful death action on behalf of the decedent’s estate and the decedent’s survivors. There are two key takeaways from this edict. First, the personal representative is the only individual with authority to bring a wrongful death action. This means a wrongful death action cannot be initiated until probate administration begins and a personal representative is appointed.
Second, the decedent’s “estate” and the decedent’s “survivors” are not one and the same. While it is possible that the “survivors” are included within the decedent’s estate, it is not guaranteed. This means not all interested parties are going to be sharing in the recovery of damages.
The decedent’s estate is comprised of the decedent’s “beneficiaries” or “heirs at law,” These are individuals or entities who are either named in the decedent’s Last Will and Testament, or who are deemed by law to be the decedent’s heirs if there is no Last Will and Testament. The beneficiaries or heirs at law are often the decedent’s surviving spouse and/or children. The estate may also include decedent’s creditors.
For wrongful death actions, “survivors” means the decedent’s spouse, children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters. It is also important to note that adult children are not allowed to recover damages for an action based on medical negligence. So, what happens if a sixty-year-old man dies from medical negligence and names his second wife and twenty-year-old son from his first marriage as equal beneficiaries of his estate? The wife and son will equally divide the assets of the estate, but only the surviving spouse will receive damages from the wrongful death action. Naturally, this can lead to animosity within the family. An unmarried partner or companion can also expect to receive nothing from a wrongful death action even if named under a Last Will and Testament.
As for the estate itself, in some instances it may pursue its own claim for damages related to a wrongful death. The problem for the hypothetical son listed above is that the estate’s claim consists of lost earnings, lost “net accumulations,” and medical or funeral expenses. Stated another way, an estate is not going to receive high-value damages unless the decedent was a younger individual at the time of his or her passing.
Proper allocation of wrongful death proceeds is critical, as is understanding the duties placed upon a personal representative. If you are nominated personal representative requiring assistance, give our office a call at 386-257-1222 to discuss your case.
