In Pitcher v. Waldo, 159 So. 3d 422 (Fla. 4th DCA 2015), John Pitcher (“Appellant”) contests a final summary judgment in which the probate court found that it did not have jurisdiction to decide Appellant’s petition for declaratory judgment. Appellant had filed a petition in the probate proceedings of his deceased daughter, claiming entitlement to a larger portion of a jury award to survivors in a wrongful death suit filed by the mother, as personal representative of the daughter’s estate. Appellant alleged that he had an agreement with the mother to share any award to survivors 60/40. However, the jury awarded the mother $1,000,000 as a survivor and awarded only $100,000 to Appellant. The probate court awarded no recovery to the daughter’s estate.
Appellant was seeking to be awarded a larger portion of the jury award based upon Section 733.815, Fla. Stat., which provides that interested persons can agree to alter their shares of property from an estate. However, the Fourth DCA found that Section 733.815, Fla. Stat., was inapplicable because the estate had no assets. It stated that although wrongful death claims must be brought by the personal representative of the estate of the deceased, the survivor’s claims are for their survivors’ sole benefit and do not become part of the estate. The Fourth DCA relied upon Section 768.21, Fla. Stat., and Hartford Ins. Co. v. Goff, 4 So. 3d 770, 773 (Fla. 2d DCA 2009).
Since the alleged agreement was between the father and mother but not the estate, the Fourth DCA held that the trial court was correct to conclude that it had no jurisdiction to adjudicate the dispute. Thus, the final summary judgment of the probate court was upheld, and Appellant was not awarded a larger portion of the jury award.
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