Posted by Nydia Streets of Streets Law in Florida Dissolution of Marriage
What happens in Florida when a party dies during a divorce proceeding? One appellate case considered this year involves that issue where the deceased former wife’s estate appealed an order dismissing her dissolution of marriage case.
In the case Martinez v. Fernandez-Uriate, 248 So.3d 1250 (Fla. 3d DCA 2018), the former wife filed her petition for divorce in July 2015. Approximately three months later, she passed away. Shortly after her death, the former husband filed a Notice of Lack of Prosecution, and about one month later, the former wife’s lawyer filed a suggestion of death and a motion for the personal representative of the former wife’s estate to be substituted as a party in the former wife’s place.
The trial court dismissed the case, and the former wife’s personal representative appealed. The appellate court analyzed the dismissal on two grounds - (1) under Florida Rule of Civil Procedure 1.260 and (2) under Florida Rule of Civil Procedure 1.420. According to Rule 1.260, there is a 90-day deadline to file a motion for substitution of a party after a suggestion of death is filed. Since both were filed on the same day in this case, the appellate court held it was error to dismiss the case on this ground. Moving on to Rule 1.420, the appellate court held it was also error to dismiss under this rule since 60 days is the stated deadline for a party to file record activity after a Notice of Lack of Prosecution is served. In this case, record activity occurred within one month of the date the Notice of Lack of Prosecution was served.
Should a party unfortunately pass away while a Florida divorce case is pending, it is possible for the personal representative of the deceased spouse’s estate to stand in the place of the deceased spouse in the dissolution of marriage case. This way, the deceased spouse’s estate is awarded assets to which the deceased spouse was entitled as part of the marriage. A consultation with a Miami divorce lawyer can help you understand your rights in your Florida family law case.