Wednesday, December 28, 2011



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. 3rd 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. 4th 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).   

No comments:

Post a Comment