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David Toback, Attorney at Law
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Injury Lawsuits Can Live On After Death

In many cases, someone may pass away in the midst of a personal injury lawsuit, or even before one is filed, but at a time when one is expected to be filed. The interplay between personal injury law and estate or probate law can be complex, and family members of the deceased need to be aware that the estate has rights to continue to pursue an injury action even after the injured party has passed away.

Before Suits are Filed

In many cases, someone may be injured and anticipate filing a lawsuit, but the suit may not be actually filed yet. In many cases, there may be a delay between an injury and a lawsuit. If someone passes away before the suit can be filed, the probate code allows the personal representative to still bring the claim on behalf of the deceased, before the expiration of the statute of limitations or a year after the death, whichever is later.

After Suit is Filed

The more complex scenario is when someone dies in the middle of an already filed injury lawsuit. Florida’s “survival statute” provides that a cause of action is not extinguished just because the person pursuing it does. The estate has a right to substitute in as a plaintiff. However, that substitution must occur within 90 days, or the right to pursue the case could be lost. This seems like an easy rule to follow, but many families, confronted by the grief and hardship of the death of a loved one, can easily overlook informing the deceased’s personal injury attorney about the death.

Cause of Action May Change

There also may be some procedural issues to deal with, depending on whether the death is caused by the injury that’s being sued for, or whether the death was independent and unrelated to the accident. In that case, the cause of action may have to be converted to a wrongful death claim. No substitution is needed, because the wrongful death claim is a completely separate action, which can only be pursued by the personal representative.

The personal injury attorney handling the case can advise the personal representative as to those legalities. This likely will occur when the injury attorney confers with the estate attorney, as pursuing the action after death will require opening an estate.

Distribution of Proceeds Can Create Issues

The assets or potential assets of an injury settlement are assets of the estate when and if they are received. These assets can create difficulty because often the deceased didn’t anticipate being a victim of an accident at the time estate documents were drawn up.

Estate documents can include provisions that distribute proceeds from any lawsuits, even if they aren’t actually known of at the time the documents are drafted. But because nobody anticipates lawsuits or proceeds from them, such provisions are often overlooked in estate documents.

Make sure your estate recovers in the event that you are injured, or anticipate proceeds from a lawsuit. Contact Tampa business, asset and probate attorney David Toback to discuss a comprehensive estate plan.

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