Splitting The Pie: Dividing Attorney’s Fees for Competing Survivor’s Claims in Wrongful Death Cases

In a previous blog article, I opined on the importance of identifying and signing up the future personal representative of a decedent’s estate when accepting a wrongful death case. However, you may find yourself in a position where the future personal representative has retained another firm, while a separate survivor entitled to damages seeks to hire your firm as their individual counsel. Such a case, while not ideal, could nonetheless be profitable.

While Florida’s Wrongful Death Act does not allow individual survivors to file separate wrongful death actions (only the personal representative has authority to file), Florida case law provides a right for individual survivors to hire separate counsel, and entitles that outside attorney to be compensated from the settlement based on their contribution to the prize. Wiggins v. Estate of Wright, 850 So. 2d 444, 446 (Fla. 2003);Wagner, Vaughan, McLaughlin & Brennan, P.A. v. Kennedy Law Grp., 64 So. 3d 1187, 1191 (Fla. 2011).

The above cited cases state that when survivors hire separate attorneys, they lose “commonality of interest,” and each attorney may be entitled to a separate fee. Under Wagner, “in those circumstances where survivors have competing claims and are represented by separate attorneys, the fee payable to the personal representative’s attorney and the survivors’ separate counsel will be determined by the work performed by each.”

Courts will not take “extra” attorney’s fees out of a settlement beyond statutory contingency fee limits. For example, if the statutory contingency fee limit is 40% in a given case, lawyers for all parties will split that 40%. When fees are apportioned, firms must compete to demonstrate their role is securing the settlement. As you know, thorough investigation can be the crux of a large wrongful death settlement. Therefore, when representing a separate survivor, if you take the initiative in uncovering facts crucial to a defendant’s liability, a significant fee will be justified in the eyes of the probate judge dividing settlement proceeds.

On the other side of this coin, when you do represent the future personal representative, you should take into consideration any competing survivor’s claims. When possible, sign fee agreements with all survivors waiving any potential conflict. Secure Letters of Administration as quickly as possible (Florida Probate Law Group can help), so that you may promptly file suit. The exclusive authority to sue is a tremendous asset in this fee battle, and should be taken advantage of.

Our firm has experience allocating wrongful death proceeds in probate court for the maximum benefit of our clients and their attorneys. If you have questions about a wrongful death case, call (352) 354-2654, or email cdavid@circuit8law.com.