When a loved one dies due to someone else’s negligence, a wrongful death claim can provide a path toward financial recovery and accountability. But what happens if the person who passed away (the “decedent”) did not have a will?
In Florida, dying without a will—known legally as intestate succession—can significantly affect how a wrongful death claim is handled and how any settlement proceeds are distributed.
Here’s what Florida families need to know.
Understanding Florida Wrongful Death Claims
Florida’s wrongful death law, found in Florida Wrongful Death Act, governs who can bring a claim and what damages may be recovered.
Unlike many other types of lawsuits, a wrongful death claim in Florida must be filed by the personal representative of the decedent’s estate. This person acts on behalf of both the estate and surviving family members.
What If There Is No Will?
When someone dies without a will, Florida law determines who will serve as the personal representative and who inherits any recovery.
This process is controlled by Florida Intestate Succession Laws.
1. Appointment of a Personal Representative
Without a will naming a personal representative, the probate court will appoint one. Typically, priority goes to:
- The surviving spouse
- A person selected by a majority of heirs
- A close family member (such as an adult child or parent)
This can create delays or disputes—especially in blended families or where multiple relatives disagree.
2. Who Receives Wrongful Death Settlement Proceeds?
This is where many people get confused.
Even without a will, not all settlement proceeds go through the estate.
Florida law separates damages into two categories:
A. Damages for Survivors
These are paid directly to eligible survivors, such as:
- Spouse
- Children
- Parents
- Other dependents
Examples include:
- Loss of companionship and protection
- Mental pain and suffering
- Loss of financial support
These funds do not pass through probate and are not controlled by intestate succession rules.
B. Damages for the Estate
Certain damages belong to the estate, including:
- Medical expenses paid by the estate
- Funeral expenses
- Lost earnings (in some cases)
These funds do go through probate and are distributed according to Florida’s intestate succession laws.
Why This Distinction Matters
If there is no will:
- Survivor damages go directly to eligible family members under the wrongful death statute
- Estate damages are distributed based on intestate succession rules
This means the final distribution of a wrongful death settlement may not align with what the decedent would have wanted.
Common Complications Without a Will
1. Family Disputes
Disagreements may arise over:
- Who should serve as personal representative
- How settlement funds should be allocated
- Who qualifies as a “survivor”
2. Delays in the Case
Before a wrongful death lawsuit can proceed, an estate must be opened and a personal representative appointed. Without a will, this process often takes longer.
3. Blended Families and Unequal Outcomes
Florida intestacy laws may produce unexpected results. For example:
- Children from prior relationships may share in estate proceeds
- A surviving spouse may not receive the entire estate
4. Minor Children’s Interests
If minor children are involved, the court may require:
- Guardianship arrangements
- Court approval of settlements
This adds another layer of complexity.
Practical Example
Imagine a decedent who is survived by:
- A spouse
- Two children from a prior relationship
If there is no will:
- The spouse and children may all have rights to portions of estate-related damages
- Survivor damages (like pain and suffering) may be allocated differently under Florida law
The result can be a distribution that surprises families who assumed everything would go to the spouse.
Key Takeaways for Florida Families
- A wrongful death claim must be brought by a personal representative—even if there is no will
- Survivor damages go directly to eligible family members
- Estate damages are distributed under intestate succession laws
- The absence of a will can lead to disputes, delays, and unintended outcomes
Final Thoughts
Losing a loved one is difficult enough without the added complexity of probate and legal uncertainty. When there is no will, understanding how Florida law governs wrongful death settlements is critical to protecting your family’s rights.
If you believe your loved one’s death was caused by negligence, consulting an experienced Florida wrongful death attorney early in the process can help ensure:
- The correct personal representative is appointed
- All eligible survivors are identified
- The claim is structured to maximize recovery and minimize conflict
Contact Florida Personal Injury Lawyer J.P. Gonzalez-Sirgo by dialing his direct number at (786) 272-5841, calling the main office at (305) 461-1095, or Toll Free at 1 (866) 71-CLAIM or email Miami Attorney Gonzalez-Sirgo directly at jp@yourattorneys.com or by text at (305) 929-8935.
This article is for informational purposes only and does not constitute legal advice.
