PROBATE CORNER
What Rights Survive / Terminate At Death ?
DAVID M . GARTEN
The purpose of the article is to explore those rights that terminate at death and those rights that survive death .
Death is only the beginning ! Under the common law doctrine of actio personalis moritur cum persona , personal tort actions die upon the death of the party because they are personal to that party . To counter this doctrine , the legislature created § 46.021 , F . S . which reads : “ 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 .” This statute does not apply to causes of action accruing postdeath . Refer to the following rights that terminate at death and / or survive death :
I . RIGHTS THAT TERMINATE AT DEATH :
( A ) Confidentiality Agreements : Confidentiality agreements are personal and die with the individual . See Nester v . Posner , 857 So . 2d 953 ( Fla . 3d DCA 2003 ).
( B ) Non-Compete Agreements : Non-compete agreements are personal and die with the individual . A contract is “ personal ” to the decedent when the contract contemplates only the personal performance of the decedent , i . e ., the personal representative could not perform as fully and as well as the decedent might have . See Bloom v . K & K Pipe & Supply Co ., 390 So . 2d 770 ( Fla . 4th DCA 1980 ); Gunderson v . Sch . Dist , 937 So . 2d 777 ( Fla . 1st DCA 2006 ).
( C ) Leases : In Frankel v . Bernstein , 334 So . 2d 37 ( Fla . 3d DCA 1976 ), the lessee entered into a lease of an apartment owned by lessors for a term of two years , to commence on the day following the termination date of her existing lease . The lessee died several months prior to the commencement of the second lease . Lessors filed an action against lessee ’ s estate to enforce the renewal lease . The appellate court , in affirming the trial court ’ s dismissal of the cause of action for accrued unpaid rent under the renewal lease , reasoned that under the terms of the lease it was meant only to have been a personal obligation of the lessee , namely her personal residence , and as such there was the implied condition that her death would have terminated the lease . But
see Kensington Assocs . v . Moss , 426 So . 2d 1076 ( Fla . 4th DCA 1983 )( A personal representative is liable under a lease if the lease contains a clause binding the heirs , executors , and assigns of the decedent / lessee and / or contained a clause allowing the decedent / lessee or his successors to assign the lease . Such language diminishes the personal nature of the lease terms .).
( D ) Alimony : An obligation to pay alimony ceases upon the death of the obligor , unless that person expressly agrees that the estate shall be bound to continue to pay alimony after his death . See O ’ Malley v . Pan Am Bank of Orlando , N . A ., 384 So . 2d 1258 ( Fla . 1980 ); Faile v . Fleming , 763 So . 2d 459 ( Fla . 4th DCA 2000 ).
( E ) Pain & Suffering : In order to recover on a claim for mental pain and suffering in a wrongful death action , a survivor must be alive at the time of final judgment . If a person seeks compensation for future mental anguish but never suffers that anguish , there are no losses to shift to a survivor ; recovery is an element of damage for the living rather than the dead . See Hamblen v . Pilot Travel Centers , LLC , 312 So . 3d 218 ( Fla . 1st DCA 2021 ).
( F ) Punitive Damages : Punitive damages are not available against a deceased tortfeasor ' s estate . Punitive damages are awarded solely for punishment , and a decedent ' s innocent heirs should not be punished when the wrongdoer is unavailable because of death . See Snyder v . Bell , 746 So . 2d 1096 ( Fla . 2d DCA 1999 ); Lohr v . Byrd , 522 So . 2d 845 ( Fla . 1988 ).
( G ) Constitutional Rights : A person ’ s constitutional rights terminate at death . If any rights exist , they belong to the decedent ’ s next of kin . See State v . Powell , 497 So . 2d 1188 ( Fla . 1986 ).
( H ) Defamation ( Post-Death ): Defamation of a deceased person does not give rise to a civil right of action at common law in favor of the surviving spouse , family , or relatives , who are not themselves defamed . See Miller v . National Broadcasting Co ., 187 Cal . App . 3d 1463 , 232 Cal . Rptr . 668 ( Cal . App . 1986 ) citing Flynn v . Higham , 149 Cal . App . 3d 677 , 197 Cal . Rptr . 145 ( 1983 ).
II . RIGHTS THAT SURVIVE DEATH :
( I ) Settlement Agreements : In Gunderson v . Sch . Dist , 937 So . 2d 777 ( Fla . 1st DCA 2006 ), the decedent and his employer entered into a settlement of a workers ’ compensation claim before the decedent ’ s passing . The agreement required the decedent to execute a general release and a voluntary resignation and stated that it was effective and binding upon the entry of an order approving a motion for attorney ’ s fees . The decedent failed to execute either a general release or sign a voluntary resignation prior to his death . The widow , as PR , sought and received an order approving her motion for attorney ’ s fees and later executed a general release and voluntary resignation on her husband ’ s behalf . The appellate court , in reversing the trial court ’ s order denying the PR ’ s request to enforce the agreement , reasoned : “ The main purpose of this settlement agreement was to bring to a close all litigation regarding the claimant ’ s workers ’ compensation claims in return for a settlement payment . The duty of performance on the claimant ’ s part was a duty which could statutorily be performed by his representative in the event of his death through the effectuation of the necessary documents . These were not duties which the claimant ’ s death rendered impossible to perform . More importantly , the death of a claimant following the execution of a settlement agreement will not affect the agreement ’ s enforcement if the personal representative can show that a binding contract was reached .”
( J ) Treble Damages : A claim for treble damages is remedial in nature and survives the death of the tortfeasor . See Snyder v .
Bell , 746 So . 2d 1096 ( Fla . 2d DCA 1999 ).
( K ) Discovery of Decedent ’ s Medical Records : The right to privacy in the Florida Constitution attaches during the life of a citizen and is not retroactively destroyed by death . Therefore , the right to privacy in the Florida Constitution applies to a decedent ’ s medical records . In the wrongful death context , the administrator of the decedent ' s estate has standing to assert the decedent ' s privacy rights . See Weaver v . Myers , 229 So . 3d 1118 ( Fla . 2017 ). See also HIPAA , 45 CFR § 164.512 ( the protection of person ’ s privacy rights survives death ).
PBCBA BAR BULLETIN 16