Who gets the money in a Florida wrongful death case?

Who gets the money in a Florida wrongful death case?

In Florida, the answer to who gets the money in a wrongful death settlement or lawsuit is not one person: the personal representative brings one case for the survivors and the estate of the person who died. Each survivor may recover for their own losses, the estate for its own, and a verdict must state each amount separately.

The personal representative is the person a court appoints to manage the estate of the person who died. Who serves in that role is covered in Who can file a wrongful death lawsuit in Florida?

Under section 768.18, Florida Statutes, the survivors are the spouse, children and parents of the person who died, plus blood relatives and adoptive brothers and sisters who were partly or wholly dependent on that person for support or services. A mother's child born outside marriage is included, but a father's child born outside marriage is included only if the father recognized a responsibility for the child's support. The complaint, the paper that starts the lawsuit, must name every potential beneficiary, including the estate, and state each one's relationship to the person who died.

Below is what damages can be recovered in a wrongful death case in Florida. For more about these cases, see wrongful death lawyers in Melbourne.

What does Florida law say about wrongful death damages?

Who the money is for

Section 768.20, Florida Statutes, says the personal representative recovers "for the benefit of the decedent's survivors and estate," meaning the survivors and estate of the person who died.

Key words

Section 768.18 says "'Minor children' means children under 25 years of age." "Support" includes money and also contributions in kind, meaning goods or services instead of money. "Services" means tasks, usually household tasks, that the person who died regularly did and that will be a necessary expense to the survivors, decided on the facts of each case.

What each survivor may recover

Section 768.21, Florida Statutes, says:

• Each survivor may recover the value of lost support and services, from the injury to the death and into the future, reduced to present value, meaning today's value of future money.
• The surviving spouse may also recover for loss of companionship and protection and for mental pain and suffering from the date of injury.
• Minor children, and all children if there is no surviving spouse, may also recover for lost parental companionship, instruction and guidance and for mental pain and suffering from the date of injury.
• Each parent of a deceased minor child may also recover for mental pain and suffering, and each parent of a deceased adult child may do so only if there are no other survivors.
• A survivor who paid medical or funeral expenses caused by the injury or death may recover them.

One exception applies to deaths from medical negligence: adult children cannot recover the children's companionship and pain and suffering damages, and parents of an adult child cannot recover for their mental pain and suffering.

What the estate may recover

Under section 768.21(6), the personal representative may also recover for the estate:

• The earnings the person who died lost from the date of injury to the date of death, minus the survivors' lost support (not counting contributions in kind), with interest.
• The loss of the "prospective net accumulations" the estate could reasonably have been expected to have but for the death, reduced to present value, but only if (1) the survivors include a surviving spouse or lineal descendants, or (2) the person who died was 25 or older (so not a "minor child" under Florida's wrongful death law), no survivor can recover lost support and services, and a parent survives.
• Medical or funeral expenses from the injury or death that became a charge against the estate or were paid by or for the person who died, except amounts a survivor who paid them can recover.

"Net accumulations" means the part of the expected net business or salary income of the person who died, including pension benefits, that they probably would have kept as savings and left in their estate had they lived a normal life expectancy. Section 768.21(7) says everything awarded to the estate is subject to the claims of creditors who have followed probate law's requirements for claims (probate is the court process for settling an estate).

How the verdict is written

Section 768.22, Florida Statutes, says: "The amounts awarded to each survivor and to the estate shall be stated separately in the verdict," the decision at the end of a trial.

How is the money split in your family's situation?

These are general examples, not advice about your family's case.

When a spouse or parent dies

If a spouse and young children survive, each may recover lost support and services, and the spouse and each child under 25 may also recover their own damages listed above. With no surviving spouse, all the children, of any age, may recover the children's damages listed above, though adult children cannot in a death from medical negligence.

A son or daughter dies

If the child who died was under 25, each parent may recover for mental pain and suffering; if the child was an adult, each parent may do so only if there are no other survivors, and not in a death from medical negligence.

Why shares can differ

In valuing a survivor's lost support and services, the law allows consideration of the survivor's relationship to the person who died, how much of that person's probable net income would have been available for that survivor, and what it costs to replace that person's services to the survivor. In figuring how long future losses last, the joint life expectancies of the survivor and the person who died, and, for healthy minor children, the period of minority, may be considered.

If a survivor dies before the case ends

Under section 768.24, Florida Statutes, if a survivor dies before final judgment, that survivor's recovery is limited to lost support and services up to the date of their death, and the personal representative pays that amount to the personal representative of the survivor who died.

For what a case may be worth, see How much is my personal injury case worth?

What else do families ask about wrongful death money?

Are wrongful death damages taxable?

Federal tax law, 26 U.S.C. section 104, says gross income (income counted for federal income tax) does not include the amount of any damages, other than punitive damages, received by lawsuit or settlement, as a lump sum or in periodic payments, "on account of personal physical injuries or physical sickness," except amounts tied to medical expense deductions taken in an earlier tax year. The federal tax regulation, 26 C.F.R. section 1.104-1, says emotional distress is not itself a physical injury or physical sickness, but damages for emotional distress that comes from a physical injury or physical sickness are excluded from income under section 104(a)(2). The Florida Department of Revenue says Florida does not impose a personal income tax. How these rules apply to each part of a wrongful death recovery, including any interest, is a question for a tax professional.

How are attorneys' fees and case costs paid?

Under section 768.26, Florida Statutes, attorneys' fees and other litigation expenses are paid by the personal representative and deducted from the awards to the survivors and the estate in proportion to the amounts awarded to them. Expenses incurred for the benefit of one particular survivor or the estate are paid from that survivor's or the estate's award.

Does a judge have to approve a wrongful death settlement?

Sometimes. Under section 768.25, Florida Statutes, while a Florida wrongful death lawsuit is pending, a settlement of the amount, or of how it is split among the beneficiaries, does not take effect without the court's approval if any survivor objects to it or if it affects a survivor who is a minor or legally incompetent. Under section 768.23, Florida Statutes, the court must provide protection, under the Florida Guardianship Law, for any amount awarded for the benefit of a minor child or an incompetent person.

What should your family do now?

• Keep receipts for medical or funeral bills a family member paid, since a survivor who paid them may recover them, and keep copies of bills sent to the estate.
• Keep records of the support and household services your loved one regularly gave each family member, since each survivor may recover their value.
• List every family member who may be a survivor and how each is related to your loved one, because the complaint must name every potential beneficiary.
• Watch the deadline. Under section 95.11(5)(e), Florida Statutes, a wrongful death lawsuit must be filed within two years. That deadline does not apply to a wrongful death lawsuit against an individual for an intentional wrongful act causing death described in section 782.04 or section 782.07 (murder and manslaughter); that lawsuit may be filed at any time, and no arrest, criminal charge, or conviction is required first. That rule took effect May 11, 2010, and reaches earlier deaths only if the claim was not already time-barred, meaning too late to file, on that date. Under section 768.28, Florida Statutes, before a wrongful death lawsuit against the state or one of its agencies or subdivisions, the claim must be presented in writing to the Department of Financial Services within 2 years after the claim accrues, meaning arises. More detail is in How long do I have to file a wrongful death lawsuit in Florida?
• To see how the whole case works, read How does a wrongful death lawsuit work in Florida?

Talk to a Melbourne wrongful death lawyer

We are sorry for your loss. Douglas R. Beam, P.A. is a personal injury law firm in Melbourne, Florida. If your family has questions about how wrongful death money is divided, we can talk it through in a free consultation.

Call us at (321) 723-6591, or use the contact form on this site. Our office is at 25 West New Haven Avenue, Suite C, Melbourne, FL 32901.

Sources

• Section 768.18, Florida Statutes
• Section 768.20, Florida Statutes
• Section 768.21, Florida Statutes
• Section 768.22, Florida Statutes
• Section 768.23, Florida Statutes
• Section 768.24, Florida Statutes
• Section 768.25, Florida Statutes
• Section 768.26, Florida Statutes
• Section 95.11, Florida Statutes
• Section 768.28, Florida Statutes
• Section 782.04, Florida Statutes (murder)
• Section 782.07, Florida Statutes (manslaughter)
• Chapter 2010-45, Laws of Florida
• 26 U.S.C. section 104 (United States Code)
• 26 C.F.R. section 1.104-1 (federal tax regulation)
• Florida Department of Revenue: personal income tax