TORTS: WRONGFUL DEATH: PROBATE COURT LACKED JURISIDICTION TO REALLOCATE DAMAGES TO SURVIVORS BASED UPON THEIR PRETRIAL AGREEMENT: AN AWARD OF WRONGFUL DEATH DAMAGES TO SURVIVORS IS NOT PROPERTY OF THE ESTATE THAT INTERESTED PARTIES MAY AGREE TO REALLOCATE

Pitcher v. Waldo, ___ So. 3d ___, 40 Fla. L. Weekly D726 (Fla. 4th DCA March 25, 2015)

The parents agreed to split wrongful death damages to survivors 60% to the mother and 40% to the father, but the jury awarded $1 million to the mother and only $100,000 to the father. The father filed a petition for declaratory judgment in probate court to reallocate the survivorship damages according to the parties’ pretrial agreement, but the probate court denied the petition for lack of jurisdiction, and the appellate court affirmed. Although Section 733.815, Florida Statutes (2012), allows interested persons to alter their shares of property from an estate, the estate in this case had no assets. The damages awarded to survivors under the Wrongful Death Act are the property of the survivors rather than the estate and do not become part of the estate. “As the alleged agreement was between the father and mother but not the estate, the trial court correctly concluded that it had no jurisdiction to adjudicate the dispute.” 

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