Can a Spouse File a Wrongful Death Claim?

If you and your deceased spouse had a longstanding marriage, you are probably right in your assumption that you knew them the best in this world. And so, you may feel a personal responsibility to advocate for them if you believe a negligent party prompted their death. However, in the Florida civil court’s eyes, you may not be afforded the right to serve as a wrongful death plaintiff. With that being said, please read on to discover whether a surviving spouse can initiate such a claim and how a seasoned Miami wrongful death lawyer at the Law Offices of Gonzalo Funes, PA, can help you utilize the best legal option to achieve righteousness for your deceased spouse.

Can a surviving spouse file a wrongful death claim in Florida?

In short, Florida’s Wrongful Death Act states that only a deceased individual’s personal representative carries the legal authority to file such a claim. With that, the personal representative may or may not be the surviving spouse, but the named individual on the deceased’s will document or estate plan.

So, say that your spouse unfortunately and unexpectedly passed away before settling their estate plan. In this case, the Florida probate court may appoint a personal representative on their behalf. Usually, the surviving spouse has primary rights to this. But still, you may take it upon yourself to submit a petition for administration to formally ask for this appointment.

For this, you must ensure that you meet the state’s requirements for a personal representative. Specifically, you must be over the age of 18, mentally capable, a Florida resident, and have no history of felony convictions. Once you successfully receive this appointment, you may proceed with pursuing a wrongful death claim in a Florida civil court.

What damages can a spouse recover in a wrongful death claim?

It is worth mentioning that you do not need to be the personal representative of your deceased spouse’s estate to earn certain benefits. For one, in the context of Florida estate law, you may be entitled to an elective share that is equal to 30 percent of your deceased spouse’s estate. This may consist of their probate estate, homestead, revocable trusts, joint accounts, etc.

Otherwise, with the help of your hired lawyer, you may send a formal written request to the personal representative of your deceased spouse’s estate so that they may initiate a wrongful death claim. In this letter, you may remind them that they carry a fiduciary duty to maximize recovery for the deceased individual’s beneficiaries, including yourself. 

With a successful wrongful death claim, you may recover economic damages like the loss of your deceased spouse’s income, their outstanding medical bills, and their incurred funeral and burial expenses. This is in addition to non-economic damages, such as loss of companionship, emotional distress, and mental suffering.

If you find yourself in a predicament where the personal representative is unwilling to act on your and your deceased spouse’s behalf, you may have to petition the Florida probate court to remove them from this position. Importantly, you must give yourself enough time to do this before the wrongful death deadline approaches (i.e., two years). 

If you are able and ready to proceed, please reach out to a competent Miami-Dade County injury lawyer from the Law Offices of Gonzalo Funes, PA. Our promise to you is that we will not give up our fight to get you every dollar of compensation to which you are entitled. So give us a phone call today.