Do I Need to Open an Estate in my Wrongful Death Case?

Boca Raton Wrongful Death Lawsuit

A formal estate must be opened in all Florida wrongful death lawsuits. Here’s why: a dead person has no standing to bring a claim. The estate is like a vehicle to bring the wrongful death case with a court appointed ‘driver’, referred to as the Personal Representative, who has the power to prosecute the case on behalf of the estate. But what happens if all family members do not get along? What if your siblings want to be the personal representative, or demand a larger portion of the settlement proceeds? This occurs frequently and Florida law protects your interests in the estate’s settlement proceeds from the wrongful death lawsuit, but you will need your own attorney.

We discuss your legal options in detail below.

What is a Wrongful Death Lawsuit?

Anytime a person’s death is “caused by the wrongful act or negligence” of another person, Florida law requires the case be brought as a wrongful death case. We are Boynton Beach wrongful death attorneys and regularly bring wrongful death claims for the following:

As you can see, wrongful death lawsuits take many forms. Yet the one characteristic they all share is that they require a formal estate be opened on behalf of the decedent.

Legal Explanation of the Required Estate in Florida Wrongful Death Litigation

What is an Estate?

A formal estate is a legal entity formed to house the assets and debts of a dead person. Usually, in wrongful death litigation, the estate’s main asset is the settlement proceeds from the case.

Who is Appointed the Personal Representative of the Estate?

This is a multi-step process. We first need to see if the decedent had a will. If so, they will usually name a person to serve as their personal representative (P.R.). If not, an estate attorney will file a petition to appoint a personal representative. This is usually the surviving spouse or a child, but it can also be a friend, step-son, etc.

I am Not the Personal Representative of the Estate — Am I Still Entitled to Settlement Money?

Absolutely. In fact, being appointed personal representative does not necessarily mean you get more money than any other survivors. As mentioned above, think of the P.R. as the driver of the vehicle. This does not mean that he or she collects any more or any less than the other passengers. The allocation of the wrongful death settlement money will be determined by the will and/or the allocation hearing in the Probate Court. So long as you are a statutory survivor of the deceased, you are entitled to make your case for some of the proceeds from any settlement or judgment in the underlying wrongful death lawsuit.

Competing Claims of Different Family Members for Wrongful Death Settlement Case Proceeds from the Estate

Our lawyers represent feuding siblings in Florida Wrongful Death Lawsuits

My Family Members and I Do Not Get Along — Is this a Problem?

Ideally, we wish all survivors of the deceased would get along. However, we have handled countless cases where there was in-fighting between siblings and spouses. This is not fatal to the wrongful death case. If you want to be appointed as the personal representative of the estate, you should seek counsel immediately before your family members file for appointment. Contact our law firm immediately to preserve your legal rights in potentially being appointed personal rep of your family member’s estate.

Florida Case Law on Competing Claims of Survivors in Wrongful Death Estate Litigation

If family members do not get along, this is not the end of the case. The good news is that Florida law allows each family member to have their own attorney in the wrongful death case. See, Wagner, Vaughn, McLaughlin & Brennan, P.A., vs. Kennedy Law Group, which confirms that surviving children can have separate counsel for their individual survivor claims while still proceeding in the same lawsuit as the Estate. Hartford Ins. Co. v. Goff is also informative on the legal issue of who owns the ‘property’ of a wrongful death settlement. In Goff, the Second District Court of Appeals held, “the recovery of damages by the survivors is distinct and separate from the recovery of damages by an estate.” This means each survivor’s claim is separate and distinct from his/her sibling’s claim.

See also, Scott v. Estate of Myers:

In a wrongful death action, the personal representative has an obligation to recover damages sustained by both the survivors and the estate. See § 768.20, Fla. Stat. (2001). The types of damages recoverable by the estate and the survivors are enumerated by statute. See § 768.21, Fla. Stat. (2001). However, the damages allowed the estate are separate and distinct from damages recoverable by the deceased’s survivors. See Fla. Crushed Stone Co. v. Johnson, 546 So.2d 1102 (Fla. 5th DCA 1989). Proceeds from a wrongful death action are not for the benefit of the estate, and are not subject to estate claims. See Estate of Barton v. Poole, 631 So.2d 315, 316 (Fla. 2d DCA 1994). Rather, they are the property of the survivors and compensation for their loss. See id. Accordingly, estate debts cannot be recovered from wrongful death proceeds recovered for survivors. See id.

Scott v. Estate of Myers, 871 So. 2d 947, 948-49 (Fla. 1st DCA 2004)

Florida law is clear on this issue. Survivor claims are separate and distinct from the claims of the estate, and each survivor in a Florida wrongful death case can have their own attorney advocate for their own interests in the settlement.

For more information on this, call our lawyers for your free consultation at 1-844-253-8919.

Need Help Opening a Florida Estate in Order to Pursue a Wrongful Death Case?

Our Florida lawyers have helped thousands of families pursue justice for the wrongful death of their loved ones. Part of this includes helping the family members get appointed as Personal Representative of the Estate of their deceased family members. If you think you have a wrongful death case in Florida and want to learn more about your legal options, contact our experienced lawyers today for a no-obligation, totally free case consultation: 1-844-253-8919.

FL Wrongful Death Lawyers to Open Required Estate