Wade Clark Mulcahy LLP

Keeping with Florida law holding that one cannot “marry into a cause of action” and the common law “marriage before injury rule,” Florida’s appellate courts have held that a spouse who marries a decedent after injury but before death, is not considered a “surviving spouse” under Fla. Stat. § 768.21(2), Florida’s Wrongful Death Act.[1]

In Domino’s Pizza, LLC v. Wiederhold, 248 So. 3d 212, 221 (Fla. 5th DCA 2018) Florida’s Fifth District Court of Appeal departed from the common law rule, holding that a spouse who marries after the injury but before decedent’s death may recover damages as a “surviving spouse” under section 768.21(2). 

In Ripple v. CBS Corp., 337 So. 3d 45 (Fla. 4th DCA 2022), the Fourth District Court of Appeal disagreed with the holding in Domino’s Pizza and applied the common law.

Recognizing the divergence between the Districts, Florida’s Supreme Court accepted jurisdiction to resolve the conflict. 

In Ripple, a man filed an asbestos lawsuit, he married a few months later, and died of mesothelioma a few months after marriage.

The defendants successfully argued that the wife could not recover loss of consortium damages because she was not a “surviving spouse” under Florida’s Wrongful Death Act.  Ironically, defendants also argued that decedent’s adult children could not recover because decedent, pursuant to § 768.21(3), because there was a “surviving spouse.[2]

After reviewing Ripple, Domino’s Pizza and the Wrongful Death Act, Florida’s Supreme Court approved of the decision in Domino’s Pizza, holding that “survivorship under section 768.21(2) is determined at the time of the decedent’s death, which is the time when the spouse outlives the decedent.”

Recognizing the potential for inconsistency in the law – a spouse who married after the injury could not recover loss of consortium damages while their spouse lived but could recover those damages if their spouse died from the injury – the Ripple Court found that “it is up to the Legislature, not the courts, to decide whether this is a problem that needs fixing and, if so, how.”  

Finally, the Ripple Court “note[d] 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 [and that] [n]othing 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).”

The holding in Ripple may have opened a pandora’s box the common law struggled to keep closed: sham consortium claims.  It also forces claims handlers and defense counsel to rethink defense strategies and the assessment of wrongful death claims.  

The Takeaway.

Ripple recognizes a new class of claimants under Florida’s Wrongful Death Act – spouses married after injury and before death – and the impact this change will have remains to be seen.

[1] “The surviving spouse may also recover for loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury.”

[2] Fla. Stat. § 768.21(3) states: “Minor children of the decedent, and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury.”