Right to Pursue a Personal Injury Case in Florida if the Defendant Dies

You were injured in an accident, hired a lawyer, and initiated a claim against the at-fault party. But suddenly, the case hits a massive roadblock: the defendant unexpectedly passes away before your case can be settled or taken to trial. Many injury victims panic in this situation, assuming their right to seek financial compensation has died along with the defendant.

Fortunately, under Florida law, your case is far from over. However, the legal strategy may have to instantly shift. You are no longer just fighting a personal injury claim; you must now navigate the complex intersection of civil litigation and Florida probate law.

At the Law Offices of Jason Turchin, one unique advantage is that we have both personal injury litigators and work with various probate attorneys. We can work to keep your lawsuit alive and pursue the defendant’s insurance policies.

👉 Call (800) 337-7755 today or use our live chat for a free, strictly confidential consultation. You will not pay any attorney’s fees or out-of-pocket costs unless we win your case.

Florida’s Survival of Actions Law (F.S. 46.021)

In Florida, a lawsuit does not die just because the person who caused the accident dies. According to Florida Statute § 46.021 (Survival of Actions), “No cause of action dies with the person. All causes of action survive and may be commenced, prosecuted, and defended in the name of the person prescribed by law.”

Additionally, under Florida’s wrongful death laws, if the wrongdoer dies before or while the action is pending, the wrongdoer’s Personal Representative shall be substituted as the defendant in the lawsuit.

This means you can still pursue your car accident, slip and fall, or wrongful death claim. The lawsuit simply changes names – instead of suing “John Doe,” you are now suing “The Estate of John Doe, by and through its Personal Representative _______.”

Will the Defendant’s Insurance Still Pay?

A common fear is that because the defendant died, their insurance policy is voided. This is generally false. As long as the defendant had a valid auto, homeowner’s, or commercial insurance policy in place at the exact time the accident occurred, that insurance company is typically still legally obligated to pay out any settlement or jury judgment.

Even if the deceased defendant died completely broke with zero personal assets, their insurance policy generally remains an active asset that we can pursue. The insurance company’s defense attorneys would step in to defend the Estate, and the insurance policy limits would still dictate the available compensation for your injuries.

Opening a Creditor’s Estate Against the Defendant

What happens if the at-fault driver dies, but their family refuses to open an estate in probate court? If there is no estate, there is no Personal Representative for you to sue. This is a common tactic used by defense attorneys to stall a personal injury case.

Because the Law Offices of Jason Turchin has Florida personal injury lawsuits and works probate attorneys on probate administration, we may not have to wait for the defendant’s family to act. Under Florida probate law, an injured plaintiff is typically considered a “creditor.” You may have the legal authority to petition the probate court to force open an estate for the deceased defendant and appoint an independent administrator.

Once the court officially opens the estate and appoints a representative, we can file a formal Statement of Claim against the estate and continue prosecuting your injury lawsuit.

What if the At-Fault Party Dies in the Same Crash?

In catastrophic head-on collisions or drunk driving crashes, it is common for the at-fault driver to die at the scene of the accident alongside the victims they injured.

The legal process remains the same. You do not sue the deceased driver directly; you sue their Estate. If your loved one was killed in the crash, your family’s Personal Representative will file a Florida wrongful death claim against the at-fault driver’s Estate. It essentially becomes one Estate suing another Estate, with the auto insurance companies funding the ultimate settlement.

Strict Deadlines: The Danger of Probate Time Limits

When a defendant dies, standard personal injury statutes of limitation can be overridden by highly aggressive probate deadlines.

In Florida, if an estate is opened and a “Notice to Creditors” is published, you generally have only 30 days from the date you receive the notice (or 3 months from the date of publication) to file your formal claim against the estate.

Why Choose Victim’s Rights Attorney Jason Turchin?

If the defendant in your case has passed away, you may need a law firm that seamlessly blends civil litigation with probate knowledge. We routinely represent victims in Miami, Fort Lauderdale, Orlando, and throughout Florida in these complex scenarios.

• Dual-Threat Capability: We can handle the premises liability or auto accident lawsuit while the probate attorneys we work with manages the estate claims simultaneously.
• AV Preeminent® Rated: Recognized by Martindale-Hubbell for the highest level of professional excellence.
• Contingency Fee Structure: We advance all costs for civil and probate court filings. You pay nothing out-of-pocket unless we secure compensation.

Do not let a defense attorney tell you your case is over. Contact our legal team today at (800) 337-7755 to keep your lawsuit alive.

Florida Deceased Defendant FAQs