PROBATE CORNER
What Rights Survive / Terminate At Death ? ( Continued )
DAVID M . GARTEN
( L ) Photographs , Videos or Audio Recordings of an Autopsy : Sec . 406.135 ( 2 ), F . S . provides in relevant part that “[ a ] photograph or video or audio recording of an autopsy held by a medical examiner is confidential .”
( M ) Decedent ’ s Name , Portraits or Photographs : Sec . 540.08 ( 1 ), F . S . provides in relevant part that “[ n ] o person shall publish , print , display or otherwise publicly use for purposes of trade or for any commercial or advertising purpose the name , portrait , photograph , or other likeness of any natural person without the express written or oral consent to such use given by : ( a ) Such person ;… or ( c ) If such person is deceased , any person , firm or corporation authorized in writing to license the commercial use of her or his name or likeness , or if no person , firm or corporation is so authorized , then by any one from among a class composed of her or his surviving spouse and surviving children .”
Lawyers § 77 cmt . c . See also Swidler & Berlin v . United States , 524 U . S . 399 , 405 , 141 L . Ed . 2d 379 , 385 , 118 S . Ct . 2081 ( 1998 ) ( construing federal rules of evidence ) and the ACTEC Commentary on the Model Rule of Professional Conduct 1.6 .
( N ) Reckless Infliction of Emotional Distress : A cause of action in tort for reckless infliction of emotional distress can lie for outrageous conduct involving pictures of the dead body of a plaintiff ' s spouse , child , sibling or parent , even though the plaintiff is not present at the display of the pictures and the allegedly tortious conduct did not physically impact the plaintiff , whether or not the emotional distress in turn caused physical harm to the plaintiff . Persons have standing to sue for this tort if they occupied the role of spouse , child , sibling , or parent to the deceased . See Williams v . Minneola , 575 So . 2d 683 ( Fla . 5th DCA 1991 ).
( O ) Disposition of a Decedent ’ s Remains : A testamentary disposition of the decedent ’ s body is not conclusive of his / her intent if it can be shown by clear and convincing evidence to the contrary . See Cohen v . Guardianship of Cohen , 896 So . 2d 950 ( Fla . 4th DCA 2005 ); Wilson v . Wilson , 138 So . 3d 1176 ( Fla . 4th DCA 2014 ).
( P ) Attorney-Client Privilege : The majority rule is that the attorney-client privilege does not terminate at the death of the client . A lawyer for a deceased client has a continuing obligation to assert the privilege . See Restatement of the Law Governing
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