Florida Trust & Probate Attorneys Blog
By Phillip B. Rarick, Esq., Miami Probate Attorney
I. Determining Survivors
The personal representative has a duty to bring an action for the wrongful death of the decedent. F.S. 768.20. The Act provides for damages for the estate and “survivors”. Survivors include the surviving spouse, “minor children” under 25 years of age, and in some instances parents.
A. Surviving Spouse. The surviving spouse may recover the value of lost financial support and services from the date of the decedent’s injury to his or her death, with interest, loss of the decedent’s companionship and protection, and for mental pain and suffering from the date of the injury. F.S. 786.21(2).
B. Children In Being At Death. Notwithstanding that the age of majority in Florida is 18, a minor under the Act, is any child under the age of 25. Minor children may recover generally whatever damages the surviving spouse can recover, but in addition may also recover for “lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury.” F.S. 768.21(3) The same recovery is allowed to adult children (over age 25) if there is no surviving spouse. No recovery is allowed to adult children, however, if the action is based on a claim for medical malpractice.
The definition of a surviving child includes any child born out of wedlock of a mother, but not a child born out of wedlock of a father unless the father has recognized his responsibility for the child’s support. Actual financial support is not required to qualify the child of decedent father under the Act. It is sufficient if the father simply has acknowledged paternity prior to his death. A minor child born alive following the death of a parent is also a “minor child” under the Act.
C. Parents. Each parent of a deceased minor child under the age of 25 may recover for mental pain and suffering from the date of injury. F.S. 786.21(4).
D. The Estate. In addition to the individual survivors recognized under the Act, in some cases the estate has a separate claim. The estate’s claim consists of lost earnings, lost “net accumulations,” and medical or funeral expenses. “Lost earnings” are defined in Instruction 6.6. Florida Standard Jury Instructions in Civil Cases (Fla. Bar CLE 1967, 2003) as, “The estate’s lost of earnings of the decedent from the date of injury to the date of death, less any amount of monetary support . . . a survivor lost during that period.” “Net accumulations” is part of the decedent’s net income [from salary or business] after taxes, including pension benefits.
II. Allocation Of Settlement Proceeds
When the settlement is less than the claims of all those entitled to recover under the Act, the proceeds must be allocated among the estate and the survivors in a fair and equitable manner. See Continental National Bank v. Brill, 636 So. 2d 782 (Fla. 3d DCA 1994).
The allocation of settlement proceeds between the estate and any survivors is extremely critical because various liens may attach to the estate’s recovery. These liens, however, do not attach to the recovery of individual survivors.
F.S. 768.25 requires court approval of all Florida wrongful death settlements objected to by any “survivor” or that affect “a survivor who is a minor or an incompetent”. As a practical matter, for the protection of the personal representative, it is recommended that the personal representative seek court approval of all settlements and proposed distributions of wrongful death recoveries before executing releases.
The Florida Wrongful Death Act, F.S. 768.16-768.27 (“Act”), controls allocation, not the intestacy statutes. Hess v. Hess, 758 So. 2d 1203 (Fla. 4th DCA 2000). If settlement occurs before a wrongful death action is filed, the court has authority to approve the settlement.
If settlement occurs after a wrongful death action is filed, and a minor’s claim is involved, it appears that only the court in which the action is pending has jurisdiction to approve settlement of the minor’s claim. Maugeri v. Plourde, 396 So. 2d 1214 (FL 3d DCA 1981). If the amount of the minor’s settlement exceeds $5,000, the court will require the appointment of a guardian. F.S. 744.387(3)(b). If there is no legal guardian, a guardian ad litem may be necessary if there is conflict of interest or the interest of the minor is not adequately represented. Mauger.id
An administrator ad litem should be appointed if the surviving spouse is also the personal representative and the allocation of the settlement will affect other interested parties or other survivors. Continental National Bank
III. Allocation of Attorneys’ Fees
Attorneys’ fees and other expenses of wrongful death litigation are paid by the personal representative and deducted from the awards to the survivors and the estate in proportion to the amounts awarded to them, but the expenses incurred for the benefit of a particular survivor or the estate must be paid from those individual awards. F.S. 768.26.
For more information contact Phil Rarick, Miami probate attorney, with Rarick & Bowden Gold, P.A. at (305) 556-5209 or info@raricklaw.com
Special Note
The information on this blog is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on information presented herein to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult an experienced Miami probate attorney. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.