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Who Is Considered a “Surviving” Spouse Under Florida Law?


An issue that frequently comes up in Florida estate and probate administration is the need to seek damages against the person or persons responsible for the decedent’s death. Like most states, Florida has a wrongful death statute. This authorizes the personal representative of a decedent’s estate to file a lawsuit against the negligent parties and recover damages “for the benefit of the decedent’s survivors and estate.”

Florida Courts Disagree on Status of Spouses Who Marry Following a Serious Accident

A “survivor” in this context includes a decedent’s spouse. But what happens if the decedent was married after he was injured but before he died from those injuries? This isn’t just a hypothetical question. At least two Florida courts have considered this scenario–and reached different answers.

In the more recent case, decided on May 11 of this year, the surviving spouse of a car accident victim sued a number of defendants in connection with her husband’s death. The accident was caused by a negligent delivery driver who suddenly pulled out in front of the victim’s car. When the victim swerved to get out of the way, his vehicle crossed the roadway, flipped over multiple times, and landed in a ditch.

The victim initially survived the accident, although he was rendered a quadriplegic. Sometime later the victim married his girlfriend. Sadly, the victim passed away a few months later as a result of his accident-related injuries.

A jury ultimately found the parent company that employed the delivery driver 90 percent liable for the victim’s death. It awarded the surviving widow damages of $10 million for the “loss of her husband’s companionship” and mental anguish. The defendant appealed, arguing among other things that the wife should not be considered a “survivor” under Florida’s wrongful death law.

The Florida Fifth District Court of Appeal disagreed. It held the status of a “surviving spouse “is “necessarily determined on the date of the other spouse’s death,” and not the spouse’s accident. But the Court acknowledged this conflicts with a decision issued last October by the Fourth District Court of Appeal, which said the “plain language of the Wrongful Death Act indicates that the [Florida] legislature did not intend for a surviving spouse to recover consortium damages if the surviving spouse was not married to the decedent prior to the date of the decedent’s injury.” By that standard, the widow in this case would not be a “survivor.”

But as the Fifth District pointed out, if its sister court’s interpretation of the law was correct, that would mean that if a spouse divorced an accident victim prior to the latter’s death, she would still be considered a “survivor” for purposes of filing a wrongful death lawsuit. The Fifth District declined to follow such reasoning. It therefore held the widow was entitled to seek damages for her husband’s wrongful death. (It should be noted the Fifth District did order a new trial in this case for reasons unrelated to this issue.)

Get Help From a Florida Estate Administration Lawyer

The conflict between the Fourth and Fifth Districts can only be resolved by the Florida Supreme Court. In the meantime, the law on this subject remains unsettled. This is why it is important to work with an experienced Fort Myers probate attorney whenever you are responsible for administering the estate of a loved one. Contact the Kuhn Law Firm, P.A., at 239-333-4529 to schedule a free consultation with a member of our team today.


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