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.

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