Someone partway through a lawsuit often wonders what happens if the case is still open at death. The answer depends on whether the claim survives, whether the injury behind the lawsuit caused the death, and who has legal authority to act.
Fla. Stat. § 46.021 generally preserves legal claims after death. If death is unrelated to the injury, a personal injury claim may continue as a survival action. If the injury caused the death, section 768.20 provides that the original claim does not survive as such, and a wrongful death claim becomes the route.
In Capone v. Philip Morris USA, Inc., the Florida Supreme Court held that a widow serving as personal representative could be substituted into her husband’s lawsuit and given a reasonable chance to amend the complaint. A new lawsuit was not automatically required, and survival and wrongful death damages may be pleaded in the alternative when the cause of death is disputed.
The personal representative, meaning the person the probate court appoints to manage the estate, generally controls this litigation. Section 733.612(20) authorizes that representative to prosecute claims to protect the estate, and section 733.301generally favors the person named in the will, subject to eligibility and court appointment. A beneficiary does not automatically gain that authority, and neither does a successor trustee of a revocable trust.
Florida Rule of Civil Procedure 1.260 governs substitution of parties, and a motion generally must be made within 90 days after a statement noting the death is properly filed and served. Missing it can lead to dismissal as to the deceased party.
Tell your estate planning attorney about any active lawsuit and share the case number, attorney names, and key documents. A strong plan also:
Note that section 768.21 assigns certain wrongful death damages to qualifying survivors, so a will cannot simply redirect every recovery. A pending claim may also produce nothing, so do not assume a settlement amount.
At Schnauss Naugle Law, we can review your estate plan alongside your lawsuit, help you choose a personal representative, and coordinate with your litigation attorney. To start planning, contact us or call us at 904-643-6342.
