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Are Florida Wrongful Death Awards Subject to Probate?


When someone dies as the result of the negligent or intentional act of another, the personal representative of the victim’s probate estate may file what is called a wrongful death lawsuit against the responsible parties. Wrongful death is a special type of personal injury claim created by Florida law. And while the victim’s estate plays an important role in filing a wrongful death claim, that does not mean any judgment recovered is itself a probate asset.

How Compensation Works in Wrongful Death Cases

Florida’s Wrongful Death Act states that when the personal representative files such a lawsuit, it is to “recover for the benefit of the decedent’s survivors and estate” certain damages. The “survivors” in this context are basically the victim’s intestate heirs. For example, if the victim was married and had children, they would be entitled to receive compensation under the wrongful death statute.

Critically, these damages are for their losses due to the victim’s death. For instance, a surviving spouse can receive compensation for their own mental pain and suffering as well as the loss of their spouse’s “companionship and protection.” Similarly, children under the age of 25 may recover damages for their “loss of parental companionship.”

As for the estate, it can also recover some damages for itself in a wrongful death case. The estate’s damages include the victim’s final medical and funeral costs and any loss of income between the date of injury and the date of death.

But as the Florida Fourth District Court of Appeal explained in a 2000 decision, Hess v. Hess, the “designation of the personal representative as the party plaintiff in a wrongful death action does not indicate a legislative intent that the wrongful death act be subsumed by the probate code.” In other words, anyone with a claim against the probate estate typically cannot satisfy that claim by going after the survivors’ share of any wrongful death award or settlement. But such recovery may be possible against any damages received by the probate estate itself.

Contact a Pompano Beach Estate and Trust Litigation Attorney Today

A related question you might have is, “What if the person who caused the victim’s death also died?” For instance, in a two-car accident it is possible that both drivers died from their injuries. In that scenario, the personal representative of one driver’s estate can file a wrongful death lawsuit against the personal representative of the other driver’s estate.

One thing to note here is that Florida follows a modified comparative fault rule in personal injury cases. This means that the defendant in any wrongful death lawsuit can argue that the deceased victim was partially or completely at-fault for what happened. If a jury agrees, this can reduce or bar the recovery of damages. But this should not be confused with a claimant against the probate estate.

If you have additional questions about the impact of potential litigation on a Florida probate estate, contact the Pompano Beach estate and trust litigation lawyers at the offices of Mark R. Manceri, P.A., today to schedule a consultation.



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