In a survival action, there are certain procedural requirements that the parties must meet. When a party dies, the death must be “suggested” or noted on the record. The parties must be served with a statement of the fact of the death. Notice must be served on all parties in the same manner as other pleadings in an action. Nonparties should be served notice in the manner provided for service of a summons. When a defendant confirms that a plaintiff has died, the defendant should consider filing a Suggestion of Death and serving the plaintiff’s counsel. The filing of a “suggestion” will start the clock on the 90 day deadline for filing a Motion for Substitution of a Party, which is required by the Florida Rules of Civil Procedure, Rule 1.260(a).

If a party to an action dies, a qualified West Palm Beach plaintiff’s attorney will ensure the action be continued by a substitution of a proper party. A motion for substitution may be made by any party to the action, the survivors, or personal representatives of the decedent. A motion and notice of hearing must be served on all parties and interested persons that are non-parties in the same manner proscribed for a summons. The motion for substitution must be made within 90 days after a Suggestion of Death, filed with the court, and served on all interested parties, or the action will be dismissed as to the deceased party. The court has discretion to extend the 90 day period if a party properly requests an extension prior to the expiration of the period. The motion for substitution may be filed by the decedent’s attorney and the personal representative may be appointed later then the 90 day period.

However, a motion for substitution is not necessary in an action if, after the death of one or more of the plaintiffs or defendants, the cause of action sought to be maintained survives only to the surviving plaintiffs, or only against the surviving defendants.

The procedural requirements necessary to maintain a survival action require a qualified attorney. An experienced West Palm Beach plaintiff’s attorney can handle the complexities of your survival action. Call Sharmin & Sharmin P.A. 1-800-74-TRIAL.