McCORMICK v. ESTATE OF SMITH (1998)

District Court of Appeal of Florida,Fifth District.

Peggy McCORMICK, as Personal Representative, Appellant, v. ESTATE OF Betty Jean SMITH, Appellee.

No. 97-3035.

Decided: September 25, 1998

Marcus M. Cornelius, III, St. Augustine, for Appellant. No appearance for Appellee.

This is the appeal of an order determining that the decedent's husband had no entitlement to funds received in settlement of a wrongful death claim by the personal representative of the decedent's estate. We agree with appellant that, without more, the husband's hand-written waiver of his elective share does not extinguish his rights in the wrongful death case. As for the lower court's decision that formal administration of this estate is required, we agree that, in the form the petition was filed, the court should not have ordered summary administration. Under the circumstances, both the personal representative and the claimant will have to start over.

AFFIRMED in part; REVERSED in part; and REMANDED.

GRIFFIN, Chief Judge.

COBB and ANTOON, JJ., concur.

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