Avoiding a Florida Wrongful Death Lien Through Settlement Apportionment

January 21, 2017

A Florida wrongful death lien can reduce survivor’s awards significantly. However, under Florida law, your client’s wrongful death settlement may be immune to estate creditors.

Damages for loss of companionship, mental anguish, and lost support belong to the living. Debt collectors cannot claim wrongful death settlement funds payable to survivors. Money owed by the decedent to third parties should only be paid from the decedent’s property. Thus, wrongful death proceeds payable directly to survivors should never be used to pay medical bills or other debts of the decedent.

The key question in determining whether settlement funds pass directly to survivors (and are immune to estate creditors) is:

Why Were These Damages Paid?

Damages paid for net accumulations (lost income and earnings that would have been saved over the decedent’s lifetime), belong to the decedent’s estate. Tobias v. Osario, 681 So.2d 905 (Fla. 4th D.C.A. 1996). Those damages are fair game for estate creditors and medical bills.

Damages for lost support, lost parental companionship, and for mental pain and suffering belong to the survivors. Fla. Stat. 768.21(1). Those damages are immune to creditors of the estate.

Often, settlements are paid without a specific damage allocation. It is the responsibility of the Personal Representative to allocate the settlement between the estate and the survivors. Thompson v. Hodson, 825 So. 2d 941, 950 (Fla. 1st DCA 2002).

Through counsel, the Personal Representative should make a petition for court approval of the settlement in the probate court setting out the case for an allocation most advantageous to your client, the survivor.

See our flowchart here breaking down what damages are available to each category of survivor.

Understanding wrongful death settlement allocations is crucial to protecting your client’s settlement proceeds. Retaining a probate lawyer experienced in settlement support will save your client time, money, and frustration throughout the settlement process. Florida Probate Law Group can help expedite and maximize your wrongful death settlement. Call us at (352) 354-2654 or email cdavid@floridaprobatelawgroup.com to discuss a Florida wrongful death lien or talk about any probate issue affecting your case today.

Client Reviews
★★★★★
I was very happy with her response to my questions and concerns about Florida probate. I am in Ohio and was not familiar with the process but they cleared everything up for me and made me feel comfortable going through the probate process with my loved ones will. Roger
★★★★★
Honest and straight forward assessment of complex case. My case span both federal and state issues, as well as civil case of fraud which maybe criminal fraud. He told me what he could do, what his limits of scope were and what my best/safest position should be and gave me an outline of how to get there. S. Todd
★★★★★
The world of probate can be fairly daunting for one who has little to no experience. Between trying to figure out what to file and when to file, there is also the where. I was quite relieved to have Nadine and Cary to guide me through the court process. Michael O.
★★★★★
I highly recommend using this law group for your Florida probate needs, and in particular, Charles David. He explained clearly what my 91 year old aunt would need to do in order to sell property that was in hers and her late husband's name. Patti T.
★★★★★
Florida probate law group,was very helpful in answering the many questions that I had concerning my situation their input was very appreciated thank you. Shirley M.