The gentleman retained his sons—both licensed Florida attorneys—to pursue compensation from the assailant’s corporate employer. Although we are not privy to the specific theories of liability they advanced, it is reasonable to assume the claims were grounded in negligent hiring and negligent retention.

The case was settled relatively quickly for a substantial sum of money. So far, so good.

Unfortunately, what followed was a prolonged saga that ultimately fractured close family bonds.

Typically, a claim of this type is brought under Florida’s Wrongful Death Act on behalf of all “survivors” as defined by the statute. In this case, the elderly gentleman, the spouse, is the sole survivor under the Act.

Florida Statute §768.20 requires that a personal representative (PR) be appointed to recover damages “for the benefit of the decedent’s survivors.” The PR is a fiduciary who shall observe the standard of care of a trustee. In some cases, the PR is also the surviving beneficiary; in others, the PR may be a party with no beneficial interest—such as another family member, a friend or even a court-appointed stranger. In this case, one of the sons was appointed PR. Neither the appointed son nor the other son had a beneficial interest under the Wrongful Death Act. Hence, all net settlement proceeds belonged solely to the surviving spouse.

The Act provides that the surviving spouse, through the PR, may recover for loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury. Section 768.21(2), Florida Statutes. The case settled for these damages.

The family rift arose over how the settlement funds were allocated and distributed.

Typically, under Florida’s Wrongful Death Act, 100% of the net settlement proceeds—e.g., after attorney’s fees and costs—are allocated to the statutory survivors; here, that would mean the entirety goes to the surviving spouse. Instead, the wrongful death settlement funds were paid into a trust controlled by the trustees, the surviving spouse’s lawyer sons. Through this trust, he would receive periodic payments.

The survivor petitioned to rescind the distribution of the wrongful death settlement to the trust. The petition claimed that the PR, individually and as personal representative, committed fraud or bad faith in connection with the wrongful death settlement by withholding material information about his rights as the surviving spouse—information that the PR had a duty to disclose. The surviving spouse also alleged that his other son had not advised him of his rights as the surviving spouse. The sons countered that they had fully informed their father of his rights and that he had settled and fully released his claims pursuant to waivers and consents filed in the probate administration as well as in a private agreement.

The PR moved for summary judgement based upon the private agreement, arguing that appellant had “waived any right to any further distribution under the Trust by the plain and unambiguous language in the Private Agreement.” The trial court granted the motion for summary judgment, finding that appellant had waived any right to further distribution under the trust based on the parties’ agreement.

This decision was appealed to the Fourth District Court of Appeal, which reversed and remanded for further proceedings. The district court instructed the trial judge to consider evidence regarding the alleged fraud and bad faith.

The DCA explained:

“Florida permits ‘the reopening of an estate after the discharge of the personal representative where there were procedural irregularities or facts constituting fraud or bad faith.’ Carraway v. Carraway, 883 So. 2d 834, 835 (Fla. 5th DCA 2004); see also Sims v. Barnard, 257 So. 3d 630, 631–32 (Fla. 1st DCA 2018) (noting the statutory bar will not be applied to a suit for fraud by concealment). ‘[A]n estate which has been closed can be reopened for the type of intentional misconduct which amounts to fraud.’ In re Estate of Clibbon, 735 So. 2d 487, 488 (Fla. 4th DCA 1998). ‘[F]raud is recognized as justification for reopening an estate, even after an order for discharge has been entered.’ Dean v. Bentley, 848 So. 2d 487, 489 (Fla. 5th DCA 2003). Further, ‘[i]n any transaction with a beneficiary, a fiduciary has an obligation to make full disclosure to the beneficiary of all material facts.’ First Union Nat’l Bank v. Turney, 824 So. 2d 172, 188 (Fla. 1st DCA 2001). Breaches of this duty of disclosure have been held to be fraud. Id. at 188–89 (citing Donahue v. Davis, 68 So. 2d 163, 171 (Fla. 1953)).”

The DCA described the lower court’s error as follows:

“Here, the trial court found that the estate could not be reopened for fraud, because appellant had waived any right to further distribution from the trust in the Private Agreement. But appellant was not seeking distributions from the trust. He was seeking to rescind the distribution to the trust from the settlement. The Private Agreement was not addressed to the estate; rather it was addressed to the trust. Thus, the Private Agreement does not control this claim.”

After considering evidence regarding fraud and bad faith, the trial court denied the petition to rescind the distribution of the wrongful death settlement to the trust. The trial court’s order was not appealed, resulting in the entry of a final judgment.

We could not help the gentleman other than to explain that he’d apparently reached the end of the road.

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Contact us at 305-758-4900 or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.

Relying on statutory interpretation, the Court rejected the argument that the common law “marriage before injury” rule bars recovery under section 768.21(2). The “marriage before injury” rule is limited to personal injury claims. It provides that where a couple is not married before the injury occurred, no consortium damages are available. See, e.g., Tremblay v. Carter, 390 So. 2d 816, 817 (Fla. 2nd DCA 1980).

The Court noted that “a wrongful death claim is not a continuation of a common law personal injury claim.” Sheffield v. RJ Reynolds Tobacco Co., 329 So. 3d 114, at 120. Rather, the wrongful death cause of action accrues once the decedent dies from the injury; at that moment, both the common law personal injury claim and a spouse’s derivative common law loss of consortium claim abate. See ACandS, Inc. v. Redd, 703 So. 2d 492, 495 (Fla. 3d DCA 1997). In other words, the decedent’s death gives rise to an independent cause of action under the Act. Sheffield, 329 So. 3d at 121.

The Court’s opinion does not assure a recovery for the surviving spouse. The Court addressed the issue thusly:

Finally, we note that as the finder of fact, a jury may, in considering the evidence, determine whether a spouse’s conduct amounts to an attempt to marry into a section 768.21(2) claim. Nothing in our decision today prevents juries from considering the timing and duration of a couple’s marriage when evaluating a claim for damages under section 768.21(2). Our legal system entrusts the jury with evaluating the evidence to determine a proper award under section 768.21(2). See Philip Morris USA, Inc. v. Rintoul, 342 So. 3d 656, 676 n.6 (Fla. 4th DCA 2022) (Warner, J., concurring in part and dissenting in part) (stating that the jury “would certainly take into consideration the length of the marriage”); Peterson v. Sun State Int’l Trucks, LLC, 56 So. 3d 840, 842 (Fla. 2d DCA 2011) (explaining that “[w]hen a jury finds that one spouse has sustained injuries as a result of the negligence of a third party, an award of damages to the other spouse for loss of consortium is not automatic” and that “in order to prevail on a claim for loss of consortium, the claiming spouse must present competent testimony concerning the impact that the incident has had on the marital relationship”).

On a somewhat related topic, it is not uncommon for couples who have been together for a long period of time without engaging in formal marriage procedures, to believe they are married by common law. Florida does not recognize common-law marriages, although it does recognize common-law marriages entered into in another jurisdiction that recognizes them. See sec. 741.211, Fla. Stat.; Compagnoni v. Compagnoni, 591 So. 2d 1080, 1081 (Fla. 3rd DCA 1991).

In one of my first cases, I represented a woman who lived with a man in South Carolina for many years. They also had a number of children together. After they moved to Miami, Florida, he abandoned my client and their children to take up with another woman. He refused to pay alimony or split up any of their accumulated assets. While they lived in South Carolina, the state recognized common law marriage. We filed suit in Dade County to prove they were married by common law. The trial judge ruled in our favor. The bum appealed to the 3rd DCA. The 3rd DCA affirmed the trial judge’s ruling. Tough luck, buddy.

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Contact us at 305-758-4900 or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.