It’s devastating when you lose a loved one, and it’s even worse when it is because someone else made a mistake or did something they shouldn’t have. The pain of loss is compounded by the insult of unfairness. You wouldn’t be making these funeral arrangements and footing the bill if a third party had acted properly.
Fortunately, statute 768.16 to 768.21 of the Florida Statutes, called the Wrongful Death Act, says that the state wants to shift the losses of a wrongful death from the grieving survivors to the wrongdoer.
That’s a fine sentiment, and anyone who has lost a loved one because of the actions or inaction of another will want to take advantage of it. The first step is to pin down whether you have a case.
Did The Death Occur Under The Right Circumstances?
The Wrongful Death Act is fairly broad in what gives a person the right to act. A person who would be held responsible for an injury caused by a wrongful act, negligence, or someone breaking a contract or warranty of any person would also be held responsible if the victim died. This holds true if the death happened in navigable waters.
Are You The Decedent’s Personal Representative?
The state of Florida calls the person or entity who acts for a dead person in probate cases or wrongful death cases a personal representative. The personal representative is normally someone who is named in the decedent’s will or estate plan. If there is no one named by the will or estate plan, the court will name someone.
Who Is The Personal Representative?
According to the Florida Bar, an individual, trust company or bank can be a personal representative. The only requirement is that a person is 18 years old or older, was never convicted of a felony, and is a Florida resident. A close relative of the person who died, such as a parent or sibling, can be a representative even if he or she isn’t a resident of Florida.
The bank has to be able and allowed to exercise fiduciary powers in Florida, and the trust company simply has to incorporated under Florida laws.
As a rule, a decedent’s spouse will be the first pick for the court if no one is named in the victim’s will, and the second choice is someone the heirs all pick. If no one can agree on anyone, the court will hold a hearing to pick someone.
The personal representative is supposed to represent all survivors, who would include children under 25, parents, spouses, parents, and any blood relatives that were partially or wholly dependent on the person who died. The personal representative would also be responsible for distributing the damages.
Are You Filing In Time?
The state lets you file within 2 years of a death in most cases, and the courts are strict about deadlines. There are a few times when you can have the deadline to file a case extended.
This is called having your case ‘tolled.’ You get an extension mostly if you can’t find the wrongdoer because the person has gone out of state or is living under a false name that you haven’t discovered yet. You can also have the case tolled if you couldn’t have known about the death until later.
Wrongful death suits are often complicated, and emotions always run high. Fortunately, law firms such as those of Ronald M. Zarkin have plenty of experience and expertise to bring to cases. Contact us to see how we can help you today if you think you have a wrongful death case.