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 post-death. 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. 3rd 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. 3rd 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. 2nd 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).
(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.”
(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 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.