Surviving Spouse’s Right to Sue

When a death is caused by the willful or negligent action of another, in some cases, a surviving spouse has the right to sue for damages. In fact, according to Florida law, when a wrongful death occurs the decedent’s heirs and/or beneficiaries have the right to seek damages by filling a wrongful death action. Thus, an individual who loses their spouse to a wrongful death, as a rightful heir, has the right to sue for such damages as economic loss, pain and suffering and, when applicable, medical and funeral expenses.

Although a surviving spouse has the right to sue, Florida law puts strict limitations on this right. In general, Florida law grants a surviving spouse the right to sue for enhanced damages over those recoverable by the decedent’s estate. According to the statute, in order to qualify as a spouse, the marriage must be legally valid as determined by the law of the state where the parties were married. However, the available damages can be significantly reduced if evidence shows that there were problems in the marriage (i.e., the parties were separated, divorced, intending to get divorced, remarried, etc.).

Beyond this general rule things get complicated. For example, what if the couple were in a same sex marriage? Although same sex marriages are not recognized by the State of Florida, if the marriage was issued in a state that does allow same sex marriages, then, according to the Florida Statute (which looks to the law of the state where the parties were married), the surviving spouse has the right to sue.

Similar can be said for common law marriages. Florida stopped recognizing common law marriages in 1968. However, if the common law marriage occurred prior to this date, then the surviving spouse can collect. Further, like the rule for same sex marriages, if the common law marriage was entered in another state and that state recognizes common law marriages, then the law of the state would apply and the marriage would be recognized under the Florida Wrongful Death Act.

If you are a surviving spouse it is important that you seek the advice of an experienced Florida wrongful death attorney, who will be able to evaluate your case and determine what damages are available to you. For more information on actions under the Florida Wrongful Death Act, contact the Law Offices of James O. Cunningham, P.A., at 877-FL-INJURY (877-354-6587) for a free initial consultation.