How are Attorney’s Fees in a Wrongful Death Calculated?

Posted on March 12, 2018

In Heiston v. Schwartz & Zonas, LLP, 221 So. 3d 1268 (Fla. 2nd DCA 2017), the Court addressed whether the personal representative’s attorneys should be awarded the entire contingency fee earned after the settlement of a wrongful death case. Section 768.26, Fla. Stat. states “attorneys’ fees and other expenses of litigation shall be paid by the personal representative and deducted from the awards to the survivors and the estate in proportion to the amounts awarded to them, but expenses incurred for the benefit of a particular survivor or the estate shall be paid from their awards.” The Second District Court of Appeals looked at In re Estate of Catapane, 759 So. 2d 9, 11 (Fla. 4th DCA 2000), which calculated attorney’s fees when the survivors are represented by separate counsel by compensating the personal representative’s attorney out of the total settlement proceeds, reduced by the amount necessary to reasonably compensate the other survivors’ attorneys for their services in representing those survivors in the proceedings.

Here, sixteen-year-old Dylan Heiston was killed in an automobile accident. Neither of his parents, Rasjia Heiston and Kristina Heiston, was able to qualify as the personal representative of Dylan’s estate. Dylan’s older brother, Dominic, did qualify and was appointed personal representative. Dominic, the Appellant, hired a law firm to represent him. Rasjia and Kristina also hired a law firm, the Appellee, to qualify Rasija or a third party as the personal representative as well as pursue a wrongful death claim. The Appellees sent demand letters to the insurance companies and filed a wrongful death claim on behalf of Rasija and Kristina. The claim wrongfully stated that Rasija was the personal representative. Notably, there was no dispute between Rasjia and Kristina concerning their respective shares of the amount of the recovery payable to the survivors; each claimed one-half of the proceeds. Ultimately, Rasjia and Kristina would each disclaim any interest in the proceeds of the wrongful death recovery with the result that the entire share of the survivors will be distributed to Dominic.

After the wrongful death case filed by his attorneys had settled, Dominic filed a final accounting and petition for discharge, which included the $50,190.51 for attorney’s fees. The Appellee objected and claimed Dominic’s attorneys were not entitled to fees because they performed no duties in the collection of estate assets. The trial court conducted an evidentiary hearing and, after the hearing, sustained Appellee’s objection and directed that the entire fee of $50,000.00 be paid to the survivors’ counsel.  Dominic appealed.

The Second District Court of Appeals found the trial court’s order in this case did not mention any of the provisions of Florida’s Wrongful Death Act. The order did not cite to Wagner, Vaughan, McLaughlin & Brennan, P.A. v. Kennedy Law Group, 64 So. 3d 1187, 1191 (Fla. 2011); Wiggins v. Estate of Wright, 850 So. 2d 444, 447 (Fla. 2003); In re Estate of Catapane, supra at 11; or any other pertinent case law. Because the trial court cited no case law, the Second District Court of Appeals (hereafter the “Second DCA”) found it difficult to discern the legal basis underlying the trial court’s ruling that denied the payment of any portion of the contingent fee in this case to Dominic’s, the Personal Representative’s  attorneys. The Second DCA stated the trial court must award the full $50,000.00 contingent fee to Dominic’s attorneys and then reduce the fee award in a manner commensurate with the value, if any, of the services that Appellee provided to the statutory survivors, Rasjia and Kristina.

If you or anyone you know is in need of representation in actions involving Guardianship, Probate, and/or Trust Disputes, or questions pertaining to such proceedings, please contact the Law Offices of Glenn M. Mednick, P.L., at (954) 315-1154 or

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