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Can I Continue My Child’s Lawsuit After Their Death?


One reason it is important to have Florida will is that it may be necessary to continue litigation after your death. Let’s say you are involved in a civil litigation matter. If you die unexpectedly while the case is still pending, your estate would have to step in and continue the case for you. This is a legal process known as “substitution of parties.”

Typically, your will names a personal representative, who can serve as the substituted party. If you do not have a will, then someone needs to file a petition to open an estate and the court will appoint a personal representative or administrator. In any event, you should not assume that just because you are the deceased party’s next-of-kin or legal heir you automatically have the right to continue their lawsuit.

Judge: Mother Is Not Son’s “Legal Representative”

Here is an example of what we mean. In a recent federal case from Miami, Padgett v. Snyder, a judge held the mother of a deceased plaintiff was not properly substituted for her son. The underlying lawsuit was filed in 2017. The original plaintiff sued the Martin County sheriff and several of his deputies, alleging they violated his federal civil rights by using excessive force against him four years earlier, in a 2013 incident.

The plaintiff died shortly after filing his lawsuit. His mother then asked the court to substitute her as the plaintiff. Although a magistrate initially granted this request, the judge overseeing the case reversed.

The judge first explained that although this was a federal lawsuit, Florida state law applied to the question of whether this case could even continue after the plaintiff’s death. Florida has a “survival statute,” which states that a personal injury claim–except for wrongful death–may continue after the original plaintiff’s death. But the law “makes no mention of who must maintain the suit,” the judge observed.

To fill in this gap, Florida courts have long held that “if the decedent’s estate has been opened, then the proper party for substitution is the decedent’s personal representative.” If there is no estate, the court may appoint another legal representative, such as a guardian ad litem, to continue the case. But here, the judge said the mother was “not the appropriate party for substitution because there is nothing in the record to demonstrate that [she] is Plaintiff’s legal representative.” As next-of-kin, she is qualified to move for substitution, but not to serve as the substituted party herself. The judge therefore directed the mother “or any other appropriate person” to file a new motion for substitution within one month–presumably after the mother opens a probate estate and is appointed as personal representative by a state court.

Get Help Making a Florida Estate Plan Today

As you can see, any delay in opening a person’s estate after their death can significantly impact the legal rights of their estate and heirs. This is why you should always have a proper estate plan in place. If you need assistance from a qualified Fort Myers estate planning attorney, contact the Kuhn Law Firm, P.A., at 239-333-4529 today.


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