Switch to ADA Accessible Theme
Close Menu
Pompano Beach Estate & Trust Litigation Lawyer
Schedule a Consultation Today! 954-491-7099

When Is a “Surviving Spouse” Not a Surviving Spouse?


When a married person dies, their surviving spouse enjoys certain rights and protections under Florida law. For example, a surviving spouse continues to enjoy any homestead property rights with respect to the primary residence. A surviving spouse can also claim a “family allowance” of up to $18,000 for their maintenance while their deceased spouse’s estate is in probate.

Widow May Pursue Wrongful Death Claim for Late Husband’s Fatal Asbestos Exposure

Another important legal right enjoyed by a surviving spouse is the ability to recover damages in a wrongful death lawsuit. A wrongful death claim is a type of personal injury lawsuit created under Florida law. It basically allows the estate of a deceased victim to sue and recover damages against those persons or legal entities whose wrongful acts caused the victim’s death. These damages include the surviving spouse’s loss of their spouse’s support and companionship, as well as their personal grief.

The Florida Supreme Court recently addressed a question that previously divided the state’s lower courts with respect to a surviving spouse’s rights in a wrongful death case. Specifically, was a person who married the victim after they suffered their injury but before they died legally considered a “surviving spouse”?

The case before the Supreme Court, Ripple v. CBS Corporation, involved a now-deceased Florida man who died from mesothelioma, a type of cancer usually caused by exposure to asbestos. Shortly before his death, in May 2015, the still-living victim filed a personal injury lawsuit against multiple defendants, whom he alleged were responsible for his asbestos exposure.

The victim died in November 2015. His spouse, acting as personal representative of his estate, subsequently amended the personal injury lawsuit into a wrongful death claim. This new lawsuit sought damages for the surviving spouse.

The defendants argued, however, that the widow married the victim long after his alleged exposure to asbestos. They maintained that under Florida common law, a person could not “marry into” a cause of action. In other words, the widow was not a “surviving spouse” for purposes of the wrongful death statute.

Normally, if a person dies without a surviving spouse, the right to recover wrongful death damages falls to their children. Here, the victim had children from a prior marriage. The defense argued that the children should also be barred from recovery, however, since the widow was a “surviving spouse” under the statutory rule governing wrongful death claims.

The Florida Supreme Court soundly rejected this “heads I win, tails you lose” argument. As far as the wrongful death statute was concerned, a “surviving spouse” was a surviving spouse. It did not matter when the parties got married. What mattered is that one spouse outlived the other.

As for the common law rule, the Supreme Court noted that a wrongful death lawsuit is not a continuation of a personal injury claim, but rather a legally separate cause of action. This meant the surviving spouse here could pursue wrongful death injuries, even though she would not have been entitled to seek similar damages had her husband survived. This might create an inconsistency in the law, the Court said, but that was up to the Florida Legislature to resolve.

Contact Attorney Mark R. Manceri Today

If you are involved in a legal dispute involving the administration of a loved one’s trust or probate estate, it is important that you seek out competent legal advice from a skilled Pompano Beach estate and trust litigation lawyer. Contact the offices of Mark R. Manceri, P.A., today to schedule a consultation.



Facebook Twitter LinkedIn

© 2019 - 2024 Mark R. Manceri, P.A. All rights reserved.
This law firm website is managed by MileMark Media.