RIGHTS THAT TERMINATE AT DEATH

ARTICLE: RIGHTS THAT TERMINATE AT DEATH 

The purpose of the article is to explore those rights that terminate at death, i.e., those rights that

are not enforceable either by or against the decedent’s estate.

PRIVACY RIGHTS:   Privacy rights are personal and die with the individual. See Nester v.

Posner, 857 So. 2d 953 (Fla. 3^rd DCA 2003).  In  Nester, the  decedent's employees signed

confidentiality agreements which barred the disclosure of any information regarding the

decedent’s private life, finances, state of mind, health, etc.  One of the employees was a witness

to the decedent's will. When the decedent’s grandchildren sought information from the employee

concerning the decedent's testamentary capacity and possible undue influence, the PR sued the

grandchildren for tortious interference with the employee's confidentiality agreement.   The

grandchildren moved to have the confidentiality agreements nullified so they can conduct

informal discovery interviews with the decedent’s employees.  The appellate court, in affirming

the trial court’s order nullifying the agreement as to the decedent’s employee, reasoned that the

PR could not enforce the agreement against the employee because the decedent’s privilege did

not survive his death. Privacy rights are personal and die with the individual. Although the

agreement survives the employee's employment, there is no provision that requires

confidentiality after the decedent’s death.

CONTRACTS “PERSONAL” TO THE DECEDENT: A PR can properly refuse to perform

the decedent’s contract when the contract is “personal” to the decedent.  A contract is “personal”

to the decedent when the contract contemplates only the personal performance of the decedent,

i.e., the PR could not perform as fully and as well as the decedent might have. See Bloom v. K &

K Pipe &Supply Co., 390 So. 2d 770 (Fla. 4th DCA 1980) and Gunderson v. Sch. Dist, 937 So.  2d 777 (Fla. 1st DCA 2006).

In  Bloom, the decedent sold all of his stock of a corporation to another  stockholder.  In

connection with that transaction, the decedent  entered into a contract pursuant to which he

agreed neither to compete with the corporation nor answer questions relating to the corporation's

business, in exchange for which, the decedent was to receive weekly payments for 10 years and

two months. The decedent  died after about one year, and the corporation stopped making the

weekly payments provided for in the contract. The PR  sued on the contract for the weekly

payments. The appellate court, in affirming the trial court’s dismissal of the complaint, reasoned

that the covenant required the decedent to "answer any questions and respond to any request for

information from K & K...." This covenant became impossible to enforce because of the

decedent’s death. Since the contract contemplated only the personal performance of the decedent

and prohibited only the decedent from performing certain actions, the purpose of the contract

was frustrated by the death of the decedent and therefore, became unenforceable by the PR. 

In Frankelv. Bernstein, 334 So. 2d 37 (Fla. 3rd DCA 1976), the lessee entered into a lease of an

apartment owned by lessors for a term of two years, to commence on the day following the

termination date of her existing lease. The lessee died several months prior to the

commencement of the second lease. Lessors filed an action against lessee’s estate to enforce the renewal lease.  The appellate court, in affirming the trial court’s dismissal of the cause of action

for accrued unpaid rent under the renewal lease, reasoned that under the terms of the lease it was

meant only to have been a personal obligation of the lessee, namely her personal residence, and

as such there was the implied condition that her death would have terminated the lease.  But see

KensingtonAssocs. v. Moss, 426 So.2d 1076 (Fla. 4th DCA 1983)(A PR is liable under a lease if

the lease contains a clause binding the heirs, executors, and assigns of the decedent/lessee and/or

contained a clause allowing the decedent/lessee or his successors  to assign the lease. Such

language diminishes the personal nature of the lease terms.).

In  Gunderson v. Sch. Dist , 937 So. 2d 777 (Fla. 1st DCA 2006), the decedent and his employer

entered into a settlement of a workers' compensation claim before the decedent's passing. The

agreement required the decedent to execute  a general release and  a  voluntary resignation and

stated that it was effective and binding upon the entry of an order approving a motion for

attorney's fees. The decedent failed to execute  either  a general release or sign a voluntary

resignation prior to his death. The widow, as PR, sought and received an order approving her

motion for attorney's fees and later executed a general release and voluntary resignation on her

husband's behalf. The appellate court, in reversing the trial court's order denying the PR’s request

to enforce the agreement, reasoned: “The main purpose of this settlement agreement was to bring

to a close all litigation regarding the claimant's workers' compensation claims in return for a

settlement payment. The duty of performance on the claimant's part was a duty which could

statutorily be performed by his representative in the event of his death through the effectuation of

the necessary documents. These were not duties which the claimant's death rendered impossible

to perform. More importantly, the death of a claimant following the execution of a settlement

agreement will not affect the agreement's enforcement if the personal representative can show

that a binding contract was reached.”

CONSTITUTIONAL RIGHTS: A  person's constitutional rights terminate at death. If any

rights exist, they belong to the decedent's next of kin. See State v. Powell, 497 So. 2d 1188 (Fla.

1986)(parents’ action claiming damages for the alleged wrongful removal of their sons' corneas

and seeking a judgment declaring §732.9185, F.S. unconstitutional); Crocker v. Pleasant, 778 So.

2d 978 (Fla. 2001)(county’s alleged violation of due process rights for failing to notify parents of

their son's death).

ALIMONY: An obligation to pay alimony ceases upon the death of the obligor, unless that

person expressly agrees that the estate shall be bound to continue to pay alimony after his death. 

See O'Malleyv. Pan Am Bank of Orlando, N.A., 384 So. 2d 1258 (Fla. 1980); Faile v. Fleming,

763 So. 2d 459 (Fla. 4^th DCA 2000). Compare Sobelman v. Sobelman, 541 So. 2d 1153 (Fla.

1989)(life insurance proceeds are not postmortem alimony.  Upon the death of an insured, the

insurance company, not the insured's estate, pays the insurance proceeds to the beneficiary).