Probate · · Updated
Learn how Florida's survival statute and probate administration allow a personal injury lawsuit to continue after a plaintiff passes away.
When a plaintiff passes away during an active personal injury lawsuit, the legal claim does not simply disappear. Under Florida's survival statute, codified at Florida Statute § 46.021, causes of action survive the death of a party. This means an estate can step into the shoes of the deceased plaintiff to prosecute the pending litigation.
Losing a loved one is devastating. Finding out that you must also deal with active court litigation compounds that stress. At The Altman Law Firm, we guide families through this difficult transition from personal injury litigation to estate administration so that accountability is preserved.
The core principle of Florida law is that a personal right of action does not die with the person. Florida Statute § 46.021 mandates that all causes of action survive and may be commenced, prosecuted, and defended in the name of the person prescribed by law.
In plain English, the legal system recognizes that the defendant's alleged negligence caused harm that should not be excused simply because the injured person passed away. The lawsuit remains active, but the identity of the plaintiff must change. Instead of the injured individual driving the case, a court-appointed representative must take formal control.
A deceased person cannot legally be a party to an active lawsuit. To keep the case moving forward, a probate estate must be opened, and the court must appoint a personal representative, sometimes referred to as an executor.
The personal representative is the fiduciary entrusted to manage the affairs of the estate. Their responsibilities in the context of ongoing litigation include:
If the deceased person left a valid will, that document usually nominates who should serve as the personal representative. If there is no will, Florida probate law establishes a priority list for family members to seek appointment.
A critical distinction dictates how the lawsuit proceeds after death: did the passing result from the original accident, or was it caused by something entirely unrelated?
If the plaintiff died from an unrelated medical condition or a separate event, the original personal injury lawsuit continues as a survival action. The estate pursues the exact damages the plaintiff could have claimed had they lived. This includes medical expenses incurred before death, lost wages up until the date of passing, and compensation for the pain and suffering experienced between the injury and death.
If the death was directly caused by the defendant's negligence, Florida's Wrongful Death Act, outlined in Florida Statute § 768.20, takes effect. Under this statute, any pending personal injury action abates, and the litigation transitions into a formal wrongful death claim brought by the personal representative for the benefit of surviving family members and the estate.
The destination of any financial recovery depends entirely on which legal path governs the case.
In a survival action, any settlement or jury verdict flows directly into the probate estate. From there, the funds are distributed according to the terms of the decedent's will or Florida's laws of intestacy if there was no will. These funds may be subject to the claims of valid estate creditors, such as hospitals or credit card companies.
In a wrongful death claim, recoveries for surviving family members—such as a spouse, minor children, or dependent parents—are distributed directly to those survivors based on statutory formulas and are generally protected from the general creditors of the estate.
Navigating these procedural requirements while grieving requires steady guidance. At The Altman Law Firm, we handle the probate coordination and the civil litigation simultaneously, ensuring your family's rights remain fully protected every step of the way.