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The “Wrongful Death Act” in Florida

10/10/2007
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There are few things we as people endure that are worse than losing a member of our family. The sense of loss, hurt, and anguish, however, is only magnified when a family member’s death was due to the negligence of someone else. What all-too-often causes even more heartache is the surviving family member’s discovery that the loss they have endured may not be recognized, i.e. compensable, under Florida law. Many people who have lost close family members as a result of the negligence of someone else have been surprised to learn that Florida law only allows for a financial recovery on behalf of certain surviving family members.

In Florida, the recovery of money damages by the surviving relatives for the death of a family member as the result of the negligence of another party is governed by Florida’s Wrongful Death Act (“Act”). According to the Act, the recovery of money damages is limited to the “survivors” of the deceased family member. The Act offers what would seem to be a fairly straightforward definition of who will constitute a deceased family member’s “survivors.” The Act defines survivors, in part, as “the decedent’s spouse, children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters.” Although the identification of a decedent’s survivors is ordinarily an easy enough task, it is critical for the lawyer representing the bereaved family to have a firm understanding of the relationship between family law principles and the Wrongful Death Act.

For example, what happens if a decedent, while not married civilly, leaves behind a common law wife? The short answer would appear to be that the surviving partner of the common law union would not be considered a survivor as Florida does not recognize common law marriages entered into after January 1, 1968. Lawyers representing the family of the deceased owe it to their clients, however, to dig deeper into the history of the couple’s relationship. For example, while Florida does not recognize common law marriages, there are still a handful of states that do. If it can be shown that a couple entered into a valid common law marriage in another state in which they previously resided which does provide for common law marriages, Florida courts will recognize the marriage and will afford the surviving partner of that union the status of “surviving spouse.”

This result should also occur even if a decedent entered into a valid common law marriage according to the laws of a foreign country. Given the diversity of the citizenry of South Florida, it is not uncommon for us to represent foreign born individuals who have lost a loved one. Accordingly, we often retain foreign lawyers to assist us in the interpretation of a foreign country’s family law. Regardless of whether we discover that a particular foreign country recognizes common law marriages, the family who has lost a loved one deserves the benefit of us leaving no stone left unturned in their search for justice.

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