Suing an Estate for Wrongful Death or Personal Injury in Florida

Personal injury lawsuits are a common way for a plaintiff to recover damages from the party whose negligence caused their injuries, while wrongful death lawsuits allow a deceased victim’s family to seek recovery from the party whose negligence caused the death. Both personal injury and wrongful death cases are routinely handled by civil trial lawyers, but the process becomes more complicated when the defendant has passed away. While it is possible to recover damages from a defendant’s estate, plaintiffs and attorneys pursuing these claims must be aware of the unique procedural rules that govern them. 

When suing the estate of a deceased defendant in Florida, the first thing to know is that technically, an estate is not a separate legal entity that can act as a party to a lawsuit. Instead, personal injury, wrongful death, and other lawsuits must name the estate’s Personal Representative or the person who has been appointed to administer the decedent’s estate. This is usually the decedent’s spouse, child, or parent. While this step may seem simple, lawsuits have been dismissed by Florida courts due to a failure to properly name the personal representative (for example, Spradley v. Spradley and Sandra Mattick v. Ernie Lisch). 

Another crucial step when suing an estate in Florida is to verify the statute of limitations. With a living defendant, the statute of limitations for personal injury cases is ordinarily four years from the date of the accident, and two years from the date of death in wrongful death cases and cases of professional malpractice. However, much shorter time limits may apply when the defendant is deceased. For example, Rule 1.260(a) of the Florida Rules of Civil Procedure requires that a motion for substitution of parties to name the personal representative is filed within 90 days of the suggestion of death. If the defendant’s estate has not yet been opened, the plaintiff may need to file for probate and name a disinterested party (typically an attorney) as the estate’s personal representative. In this case, the plaintiff would also need to file a suggestion of death and a motion for substitution of parties.

Navigating a wrongful death or personal injury lawsuit after the defendant’s death can be a complex process that requires knowledge of the applicable rules of procedure. If you or your clients are facing this situation, the litigation experts at Leighton Law are here to help! Call us today at 888.988.1774 to get in touch with our team.