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Can a Deceased Person File a Lawsuit in Florida?


One area of estate and probate administration that often confuses people is the status of any lawsuits–or potential lawsuits–involving the deceased individual. To set the record straight, a dead person cannot sue in Florida courts. But that does not mean that any lawsuit pending at the time of the person’s death goes away, or that their estate might not have the right to sue. But a dead person cannot serve as an active plaintiff in any civil lawsuit.

The Importance of a Personal Representative

One type of lawsuit that sometimes arises after a person dies is a wrongful death claim. This is a special type of personal injury lawsuit brought against anyone whose negligence allegedly caused the decedent’s death. Under Florida law, however, the deceased cannot bring a wrongful death claim–again, because the non-living cannot sue. Instead, the personal representative of the decedent’s estate must file the lawsuit.

Ideally, the decedent left a will naming a representative. If not, a Florida court must appoint a personal representative based on the provisions of the state’s intestacy laws. The personal representative provides a living person to effectively step into the shoes of the deceased.

The appointment of a personal representative is not a legal technicality. It is a critical step in maintaining any sort of legal action past the death of the decedent. Consider this recent decision from the Florida First District Court of Appeal, Philip Morris USA Inc. v. Freeman. This case was one of many wrongful death claims filed against the tobacco giant over its role in promoting cigarette smoking.

The victim in this particular case died in 1995. Yet somehow the decedent purportedly sued Philip Morris two years later in his individual capacity. There was no record before the court of any personal representative named for the decedent’s estate. And by the time a personal representative was named and filed a proper lawsuit, it was too late–Florida’s two-year statute of limitations for wrongful death claims had expired.

Before the First District, the estate argued that since the initial lawsuit was filed before the two-year deadline, the statute of limitations did not bar the amended complaint substituting the estate for the decedent. The Court of Appeal disagreed. It explained the lawsuit purportedly filed by the decedent “was a nullity,” meaning it effectively never happened as far as the Court was concerned.

Speak with a Lee County, Florida, Estate Planning Lawyer Today

It is also important to understand that if a civil lawsuit is filed before a person dies, it is not automatically dismissed upon their death. But once again, it is critical to ensure there is a personal representative to step into the decedent’s legal shoes. So if you do not already have a will, it is a good idea to make one as soon as possible, as you never know what legal issues may arise (or still be pending) at the time of your death.

If you need assistance from an experienced Fort Myers estate and probate administration attorney, contact the Kuhn Law Firm, P.A. at 239-333-4529 today to schedule a free initial consultation.


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