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Florida Wrongful Death and Probate

Written by on Apr 4, 2011| Posted in: General

Wrongful Death Suits during the Florida Probate Process

In many probate cases that come to our office, we discover that the decedent died under somewhat unusual circumstances (medical malpractice, automobile accident, etc.) that may give rise to a wrongful death law suit.  Sometimes the filing of a wrongful death suit may be warranted during the pendency of the Florida probate process. 

For example, we recently had been representing a client for relatively standard estate administration.  During this administration, a hospital filed a claim against the estate for an exorbitant fee for the one day of medical services they provided to the decedent who died while at this hospital.  After requesting and reviewing the itemized medical bill and records, we uncovered that the decedent died during a routine medical procedure, possibly due to the negligent act of the medical provider. 

In order to bring a wrongful death suit, you must show that there was a legal duty owed by the defendant to the plaintiff, a breach of that duty by the defendant, death to the plaintiff legally caused by the defendant’s breach, and consequential damages.  This damages element is an essential element to focus on.  The estate may recover for lost earnings, accumulations, and funeral expenses.  However, in order to recover for punitive damages (where the bulk of any recovery will come from), there must be a surviving spouse or a surviving child under the age of 25 who actually bring the lawsuit.  

Although no amount of money will ever bring back a loved one, a wrongful death settlement can help alleviate the additional suffering by providing some compensation for a spouse or minor children.  Opening a probate estate to have a personal representative appointed is the first step in commencing a wrongful death law suit.

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