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Chanfrau & Chanfrau

Who Can File a Wrongful Death Suit?

By William Chanfrau, Jr. on August 13, 2014

A photo of a grieving womanA sudden death is a tragedy that brings grief and, often, financial hardship to survivors. The pain is compounded if the death was a result of negligence, recklessness, or misconduct. In these cases, survivors have the right to compensation for their pain, the loss of companionship, and the loss of financial support.

But who can file a wrongful death lawsuit? In Florida, the only person who can file a wrongful death suit is the “Personal Representative” of the deceased. Determining who is the Personal Representative is one of the first, and many, legal complexities a family will face as they pursue a wrongful death claim following a loved one’s death.

If you or your family has suffered a loss, the complexity of Probate Court and wrongful death lawsuits makes finding a skilled attorney experienced in probate, personal injury, and wrongful death lawsuits an important first step. With more than 40 years of combined experience in personal injury law, the attorneys at Chanfrau & Chanfrau in Daytona Beach understand the intricacies of probate and how to pursue a wrongful death suit.

Who Can File

Determining who is the Personal Representative of the estate is the first task in a wrongful death lawsuit since only the Personal Representative appointed by the Probate Court has the right to file the lawsuit on behalf of the estate.

If there is a will that names the Personal Representative, the task is clear cut. However, if the victim did not leave a will, then the court will appoint someone who will represent the best interests of the estate. Usually a spouse, children, or other responsible, closely-related relatives will be given top consideration.

However, adding to the complexity, sometimes there are disagreements about who should be selected as the Personal Representative. If no agreement can be reached, any interested party may petition the court, adding another layer of legal steps.

Who Are Survivors in a Wrongful Death Suit?

Once the Personal Representative is chosen, he or she has the authority to file a wrongful death claim on behalf of the estate and survivors. Who is considered a survivor and can seek compensation is determined by the Florida Wrongful Death Act.

Those who can be compensated for their loss generally include:

  • The decedent’s spouse
  • The decedent’s children born of a marriage
  • The decedent mother’s children born out of wedlock
  • A decedent father’s children born out of wedlock if the father, prior to his death, recognized a responsibility for child support
  • The decedent’s parents
  • Any blood relatives partly or wholly dependent on the decedent for support or services
  • Any adoptive brothers and sisters partly or wholly dependent on the decedent for support or services

However, there are also special rules that take into account the complexity of today’s families, including:

  • Common law marriages
  • Remarriage
  • Biological fathers vs. stepfathers
  • Divorced parents with financial dependency
  • Intent to divorce or remarry
  • Unborn children

As is evident, the legal definitions of survivors can be complex. Adding to the complexity, the type of compensation allowed will vary depending on each survivor’s relationship to the deceased person, their age, and on the existence of other survivors.

Questions

Wrongful death lawsuits are complex and it takes an experienced attorney to ensure each survivor is awarded the maximum compensation. If you have lost a family member and need information about wrongful death claims, we can review your case and help you decide your next steps. 

Please call today.

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