Naples, FL asked in Family Law, Appeals / Appellate Law, Probate and Wrongful Death for Florida

Q: Inquiring if there is any leagal action to dispute next of kin as a blood daughter vs spouse .

Wanting to file malpractice lawsuit for her death and was told her husband would be the only one able to do so even tho he’s nothing to her 3 kids and was also the enabler for her problem why would he deserve this over us ?

2 Lawyer Answers
Lauren Nagel Richardson
Lauren Nagel Richardson
PREMIUM
Answered
  • Estate Planning Lawyer
  • Gainesville, FL
  • Licensed in Florida

A: I am so sorry to hear about your mother's passing. I think what you are referring to is that the spouse has preference of appointment as personal representative (PR) in the probate estate, and the PR is the person who would file the lawsuit.

All is not lost, however. If the spouse does not want to serve as personal representative and waives his right to serve, or if time goes by and he does not open the estate or pursue the wrongful death claim, then you could petition the court to appoint a child as PR instead and serve him. If he does not object, the court will likely appoint the child. If he does object, then you would have a hearing.

You should retain an attorney who is willing to file the petition to appoint you as PR and serve notice on the spouse and see if he objects, and if he does, then your attorney could still make certain arguments and the court would decide who should be appointed PR.

Best option would be for him to waive. He, as statutory survivor, would still benefit if the PR was able to successfully pursue a claim. Maybe if he knew he would not be left out that he would consent to letting a child serve as PR. It may be worth a try.

C. Randolph Coleman
C. Randolph Coleman
Answered
  • Estate Planning Lawyer
  • Jacksonville, FL
  • Licensed in Florida

A: Under Florida law, the proper party to file a wrongful death action is the personal representative (executor) of the deceased person's probate estate. If the deceased person had a last will and testament, then she would have identified the person who is to serve in the capacity of personal representative in the will. That person has preference, absent unusual circumstances.

If there is no will, then the probate statute designates who is to serve as the personal representative of the estate. The spouse is the statutory preference, then the children, then other family members. Any person who is nominated as personal representative, either by will or by statute, can decline to serve by signing and filing with the probate court a waiver to serve in that capacity.

Absent a waiver, the probate court can be asked to disqualify someone with the statutory preference (the surviving spouse in this case) for cause. Cause would include whether the nominated person has been convicted of a felony, has a history of bankruptcy, is mentally or physically incapable of serving as personal representative, or has an interest adverse to the beneficiaries of the estate.

The beneficiaries of the estate will depend on whether there was a will. If there was a will, then the beneficiaries that are named in the will are the beneficiaries of the estate. If there was no will, then the beneficiaries are determined by the intestacy statute. If the husband was married to her at the time of her death, and the children are the children of both husband and wife, then the surviving spouse is entitled to the estate. If the children are minors (under 18 years of age), or if the children are the wife's but not the husband's children, then one half the estate goes to the surviving spouse and one half to the children.

The exception to the above distribution is in a wrongful death action. The trial court in a wrongful death action has the authority by statute to determine the equitable allocation of wrongful death proceeds among the various beneficiaries. So, for instance, upon a proper evidentiary showing, the court could determine that because of the nature of the relationship between the deceased and the surviving spouse, that the surviving spouse will get a proportionately smaller (even none) of the wrongful death proceeds. This might happen if the surviving spouse was a contributing cause of the death, or otherwise it would be inequitable to allocate the wrongful death proceeds to the surviving spouse.

You are dealing with a particularly difficult area of the law. I strongly encourage you to seek independent counsel to represent the interest of the children in this case.

Good luck.

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