Florida Statute 46.021
“Actions; surviving death of party”
What it means
Two sentences do all the work: no cause of action dies with the person, and all causes of action survive and may be commenced, prosecuted, and defended in the name of the person prescribed by law. In an estate, that person is the personal representative — the lawsuits a decedent could have brought, and the ones that could have been brought against them, pass into the probate instead of vanishing.
The one big exception lives in another statute: when the injury itself causes the death, §768.20 abates the personal-injury claim and replaces it with a wrongful-death action.
- No cause of action dies with the person — the rule covers claims held by the decedent and claims against the decedent.
- Surviving claims are commenced, prosecuted, and defended by the person prescribed by law — for an estate, the personal representative.
- A lawsuit already pending at death continues, with the estate substituted as the party.
- Exception elsewhere: if the injury caused the death, §768.20 abates the personal-injury claim in favor of wrongful death.
How it plays out
Some estates exist for exactly one reason: a claim survived. §46.021 is why a probate gets opened for someone who died with little property but a pending case — and why a creditor can still sue a decedent by proceeding against the personal representative. Our office sees both directions: substituting an estate into a suit the decedent filed, and defending suits filed after death. The claim survives, but probate's creditor deadlines under §733.702 and §733.710 still decide whether anyone collects.
Where this shows up
Pages on this site where § 46.021 does real work:
Questions people ask
