Jeffrey P. Gale, P.A. /// Spouse Married Post-Accident Entitled to Florida Wrongful Death Damages

In Ripple v. CBS Corp., 385 So.3d 1021 (Fla. 2024), the Florida Supreme Court held that a spouse who married the decedent after the onset of the injury that caused the decedent’s death can recover damages as a “surviving spouse” under section 768.21(2) of the Florida Wrongful Death Act (the Act). That provision allows a “surviving spouse” to recover “for loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury.”

Relying on statutory interpretation, the Court rejected the argument that the common law “marriage before injury” rule bars recovery under section 768.21(2). The “marriage before injury” rule is limited to personal injury claims. It provides that where a couple is not married before the injury occurred, no consortium damages are available. See, e.g., Tremblay v. Carter, 390 So. 2d 816, 817 (Fla. 2nd DCA 1980).

The Court noted that “a wrongful death claim is not a continuation of a common law personal injury claim.” Sheffield v. RJ Reynolds Tobacco Co., 329 So. 3d 114, at 120. Rather, the wrongful death cause of action accrues once the decedent dies from the injury; at that moment, both the common law personal injury claim and a spouse’s derivative common law loss of consortium claim abate. See ACandS, Inc. v. Redd, 703 So. 2d 492, 495 (Fla. 3d DCA 1997). In other words, the decedent’s death gives rise to an independent cause of action under the Act. Sheffield, 329 So. 3d at 121.

The Court’s opinion does not assure a recovery for the surviving spouse. The Court addressed the issue thusly:

Finally, we note that as the finder of fact, a jury may, in considering the evidence, determine whether a spouse’s conduct amounts to an attempt to marry into a section 768.21(2) claim. Nothing in our decision today prevents juries from considering the timing and duration of a couple’s marriage when evaluating a claim for damages under section 768.21(2). Our legal system entrusts the jury with evaluating the evidence to determine a proper award under section 768.21(2). See Philip Morris USA, Inc. v. Rintoul, 342 So. 3d 656, 676 n.6 (Fla. 4th DCA 2022) (Warner, J., concurring in part and dissenting in part) (stating that the jury “would certainly take into consideration the length of the marriage”); Peterson v. Sun State Int’l Trucks, LLC, 56 So. 3d 840, 842 (Fla. 2d DCA 2011) (explaining that “[w]hen a jury finds that one spouse has sustained injuries as a result of the negligence of a third party, an award of damages to the other spouse for loss of consortium is not automatic” and that “in order to prevail on a claim for loss of consortium, the claiming spouse must present competent testimony concerning the impact that the incident has had on the marital relationship”).

On a somewhat related topic, it is not uncommon for couples who have been together for a long period of time without engaging in formal marriage procedures, to believe they are married by common law. Florida does not recognize common-law marriages, although it does recognize common-law marriages entered into in another jurisdiction that recognizes them. See sec. 741.211, Fla. Stat.; Compagnoni v. Compagnoni, 591 So. 2d 1080, 1081 (Fla. 3rd DCA 1991).

In one of my first cases, I represented a woman who lived with a man in South Carolina for many years. They also had a number of children together. After they moved to Miami, Florida, he abandoned my client and their children to take up with another woman. He refused to pay alimony or split up any of their accumulated assets. While they lived in South Carolina, the state recognized common law marriage. We filed suit in Dade County to prove they were married by common law. The trial judge ruled in our favor. The bum appealed to the 3rd DCA. The 3rd DCA affirmed the trial judge’s ruling. Tough luck, buddy.