If you are a surviving spouse and you could speak to an Orlando wrongful death attorney, and depending entirely on the circumstances in your former marriage, some of the questions that you might be asking relate to the state of your former marriage or your relationships after your deceased spouse passed away. As an Orlando wrongful death attorney, I wanted to try to answer some of those questions. Because wrongful death damages calculations relate partly to the strength of the relationship that you had with your deceased spouse, certain evidence regarding your relationship may or may not be admissible (and there may or may not be ways of preventing it’s admissibility, depending on the unique facts of your case). Please also know that, as I write this, I want to be as sensitive as possible to the horrific feelings being experienced by most surviving spouses after the death of their spouse. You should know that my goal is only to communicate aspects of Florida wrongful death law that could apply to a surviving spouse, although much of the information below applies to very specific situations, so may have no applicability to your potential case.
Can The Defense Admit Evidence Of Your Deceased Spouse’s Intent To Remarry?
Maybe. At least one Florida court has ruled that a witness could testify that the decedent (deceased spouse) told her, before he died, that he was planning to divorce his wife and marry her. The reasoning was that this evidence related to the pain and suffering experienced by the survivor, the degree of loss of companionship and protection, and even economic losses. You should also know that the defense is entitled to explore these issues in a process called “discovery,” which is a lengthy pre-trial phase when attorneys from both sides can ask questions, talk to witnesses, depose witnesses and parties, and request and review any relevant documents. Since admitting evidence of marital problems could potentially be abused as a defense litigation tactic, your attorney can attempt to thwart impermissible discovery techniques, impeach (discredit) the testifying witness, or present rebuttal evidence regarding the strength of your marriage or otherwise discounting the witness’ testimony. Your Orlando wrongful death attorney can also try to exclude the evidence by motion for various reasons, including potentially “unfair prejudice,” although this last option is not always an easy sell to a judge, who has virtually unfettered discretion regarding whether to admit or deny “unfairly prejudicial” evidence. But you need someone who will uncover every stone in their attempt to prevent this type of potentially damaging evidence from harming your case as much as possible within the rules of law. Creative arguments and strategies, along with hyper-careful preparation and planning, and close communication with YOU, are the best counter to any defense. I employ all of those methods with passion and vigor in my case preparation.
Can The Defense Admit Evidence Of Remarriage?
Under Florida’s Wrongful Death Act, evidence of a surviving spouse’s remarriage is admissible in a wrongful death action. How the jury can use that evidence is less clear because the statutory provision is old and there is not a lot of interpretive law. One case has held that this evidence, although admissible, is only relevant to the damages suffered by the estate, not damages suffered by the surviving spouse (learn the difference between the estate and surviving spouse here). That being said, if you have remarried since your spouse passed away, then you definitely need someone who will carefully craft requested limiting jury instructions, which the judge may or may not grant. But you still absolutely need to have a thorough and diligent advocate attempt, by way of written motion and oral argument, to get the judge to instruct the jury that this evidence is not relevant to the surviving spouse’s damages, and so they should not consider it for that purpose (juries are sometimes instructed to ignore evidence for certain purpose; we call these “limiting instructions.”)
Can The Defense Admit Evidence Of Intention To Remarry?
This is another maybe. There are arguments going both ways regarding whether a judge should or should not admit evidence regarding a surviving spouse’s intention to remarry. I believe the better view is that this evidence should not be admitted, partly because the statute says that evidence of remarriage is admissible, but mentions nothing about evidence of an intent to remarry. That being said, again, judge’s have a lot of discretion and can also make bad decisions sometimes (that’s why we have appeals, and appeals of appeals, but even then sometimes the law is unpredictable).
What Should You Do?
The best approach if you are facing any of the above situations is to hire an Orlando wrongful death attorney who will make thorough and persuasive arguments to the judge about why this type of evidence should either be excluded or limited, and then make every effort to strongly counter this evidence during any jury presentation, or other strategic moves, assuming your case gets that far (many if not most cases settle before trial, but still pre-trial judicial decisions regarding whether this type of evidence will be admissible can impact settlement offers because defense attorneys may either feel better or worse about the case that they think they can present to a jury if they do not settle).
If You Would Like To Speak With Me Today At No Cost Or Obligation (And No Pressure) About Whether You Might Have A Viable Wrongful Death Claim, Please Give Me A Call. I Can Often Return Calls The Same Day. (407) 803-2139.