Florida wrongful death lawsuits can be tricky matters when it comes to who has the right to sue. One can pursue a claim as a representative of decedent’s estate or they can pursue action as a survivor of decedent. Claims by survivors may result in higher damage awards, depending on the circumstances, because there are different types of damages one can assert. Those with a right to claim damages as a survivor generally include (in descending order) the decedent’s:
- Children (particularly those under 25);
- Siblings or other blood/ adoptive relatives who were at least partially dependent on decedent for support or services.
Still, it is incumbent on those who have the right to pursue such a claim to do so in a timely manner. For example, a spouse may have statutory priority over a decedent’s parents in a wrongful death claim, but unless the spouse actually files the claim within the wrongful death statute of limitations (2 years in Florida), they may not be able to successfully challenge a prior claim, settlement or verdict.
Such was the case in a matter recently before the Tennessee Supreme Court. According to court records, the mother of an unmarried man who died in handcuffs while in the custody of a retail store was able to secure a wrongful death lawsuit settlement in 2010, claiming to be the sole heir of the decedent. However, 20 months after the case was dismissed in lieu of that settlement, a woman who reportedly gave birth to decedent’s child filed a motion to set that order aside and substitute her (as her child’s representative) as the real party in interest, allowing the claim to relate back to the original filing. Continue reading →