The general duty of a Personal Representative to faithfully gather the assets of the decedent also includes an obligation to make a determination regarding litigation on the decedent’s behalf after death and the continuation of litigation that the decedent initiated prior to his or her passing. These enumerated powers are set forth in Florida Statute 733.612(20) as follows:
Except as otherwise provided by the will or court order, and subject to the priorities stated in s. 733.805, without court order, a personal representative, acting reasonably for the benefit of the interested persons, may properly
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(20) Prosecute or defend claims or proceedings in any jurisdiction for the protection of the estate and of the personal representative.
Naturally the Personal Representative also has the authority to settle claims that the decedent would have otherwise been able to settle but for his or her passing.
The decision to file suit on behalf of a decedent by a Personal Representative is also afforded a one-year extension on the otherwise applicable statute of limitations. Fla. Stat. 733.104 provides:
(1) If a person entitled to bring an action dies before the expiration of the time limited for the commencement of the action and the cause of action survives, the action may be commenced by that person’s personal representative before the later of the expiration of the time limited for the commencement of the action or 12 months after the decedent’s death.
(2) If a person against whom a cause of action exists dies before the expiration of the time limited for commencement of the action and the cause of action survives, if a claim is timely filed, the expiration of the time limited for commencement of the action shall not apply.
To illustrate this point let’s pretend that Bob was thinking about suing for a breach of contract against his insurance company. He waited and waited and never brought the action. Fla. Stat. 95.11 provides a five-year statute of limitations period on breach of contract actions. If Bob passes 4 years and 11 months after the breach of contract, his Personal Representative will have a full year and one month, instead of just one month, to decide whether or not to pursue the action.
Wrongful Death Actions
Actions for wrongful death are treated a little bit differently. In Florida a Personal Representative has an obligation to bring an action for wrongful death against any wrongdoers on behalf of the heirs or beneficiaries of an estate. Also, wrongful death claims must be filed within the time prescribed by the statute so be careful and mindful of the applicable statute of limitations if you are dealing with a wrongful death action. As to damages:
Fla. Stat. 768.20 provides:
The action shall be brought by the decedent’s personal representative, who shall recover for the benefit of the decedent’s survivors and estate all damages, as specified in this act, caused by the injury resulting in death. When a personal injury to the decedent results in death, no action for the personal injury shall survive, and any such action pending at the time of death shall abate. The wrongdoer’s personal representative shall be the defendant if the wrongdoer dies before or pending the action. A defense that would bar or reduce a survivor’s recovery if she or he were the plaintiff may be asserted against the survivor, but shall not affect the recovery of any other survivor.
As you might expect, an action for wrongful death seeks to provide recovery to the decedent’s family members for lost support and services that would have been provided in the future. A surviving spouse may recover for companionship and mental pain and suffering resulting from the injury. The estate must offset the recovery by any valid creditor claims. Additional recovery can be had for necessary funeral or medical expenses due resulting from the injury or death.
Survivors who are minors or incompetent require that a guardianship proceeding be established to manage benefits.
Other Claims
Claims for Alimony and Support against the Estate will survive the death of the obligator so long as the obligation is based on a contract or agreement that reflects an intent to bind the obligated spouse and his or her estate after death.
If the decedent held a Judgment against a debtor, the estate may pursue and collect the amounts owed on behalf of the estate. Conversely if the decedent owed pursuant to a valid Judgment, in Florida, the Estate can be responsible for the payment of the debt.
Although the applicable statutory provisions vary, in general Florida Law empowers the Personal Representative to sue and to have the estate be able to be sued so that the death of a decedent does not stand in the way of civil litigation.
Disclaimer: The information contained in this blog/website is for informational purposes only and provides general information about the law but not specific advice. This information should not be used as a substitute for advice from competent legal counsel as laws change and the facts in your specific case need to be analyzed.
