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Probate Required to Sue for Wrongful Death

September 8, 2020

If you are bringing a Florida wrongful death claim, it is important that you hire a probate attorney with experience dealing with wrongful death claims, like the attorneys at Florida Probates.

The loss of a loved one is a difficult time, and the probate process can be confusing and burdensome. At Florida Probates, we are committed to minimizing the impact of the probate process on your life and saving you precious time and money. Let us help you through the probate process.


Florida Wrongful Death Action

A wrongful death action is a civil lawsuit that may be brought when a person dies due to the negligence or wrongful act of another person.

Under the Florida Wrongful Death Act (F.S. 768.16 – 768.26)  when a person’s death “is caused by the wrongful act, negligence, default, or breach of contract or warranty” of another person or entity, the estate of the deceased person may bring a lawsuit seeking damages against the party who caused the death.

Personal Representative Must Bring Florida Wrongful Death Action

The Florida Wrongful Death Act requires that a wrongful death action be brought by the personal representative of the deceased person’s estate (“Estate”). A probate case must be filed to get a personal representative appointed by the court.

Although the wrongful death action is brought by the personal representative, it is brought on behalf of the Estate and any surviving family members.

Allocation of Damages Awarded

Funds awarded in a wrongful death action are allocated among the Estate and any surviving family members.

If there is a settlement, then either (i) the Estate and any surviving family members must agree on an allocation of the funds, or (ii) a hearing is held before the court to allocate the funds.

If a hearing to allocate the funds is required, you need an experienced attorney representing you.

Handling of Damages Awarded to Estate

Before the Estate can receive its portion of the funds, certain medical reimbursements must be made. Once the Estate receives its portion of the funds, it must satisfy all creditor claims before the funds can be distributed to beneficiaries of the Estate.