Florida Wrongful Death Lawyer

Who files a wrongful death claim in Florida?

The personal representative of the estate. Florida requires a single action, brought by the personal representative, for the benefit of all survivors and the estate.

The personal representative is usually named in the will or appointed by the probate court. That person must list all potential survivors in the complaint. Family members do not file separate lawsuits. Because appointment can take time, starting the probate process early protects the two-year deadline.

Who counts as a survivor under Florida law?

Florida defines survivors as the spouse, children and parents of the person who died, along with blood relatives and adoptive siblings who were partly or wholly dependent on them for support or services.

Children under 25 have special status. They may recover for lost parental companionship, instruction and guidance, and for their mental pain and suffering. A surviving spouse may recover for loss of companionship and protection and for mental pain. Parents of a minor child may recover for mental pain, and parents of an adult child may do so in some cases when there are no other survivors.

What damages can be recovered in a Florida wrongful death case?

Florida divides damages between survivors and the estate. Each category belongs to a specific person or to the estate itself.

• Survivors: the value of lost support and services, companionship and guidance, and mental pain and suffering for eligible family members.
• Survivors: medical and funeral expenses they paid.
• Estate: loss of earnings from injury to death and loss of the prospective net accumulations the person would likely have left.
• Estate: medical and funeral expenses paid by the estate.

In most cases where an injury causes death, the wrongful death claim replaces a separate survival action. The person's own pain and suffering before death is generally not a separate category, so the focus is on the survivors' losses and the estate's financial losses.

Are medical negligence deaths treated differently?

Yes. Florida's wrongful death law limits who may recover certain damages in medical negligence death cases. Adult children 25 or older generally cannot recover noneconomic damages for a parent's death caused by medical negligence, and parents generally cannot recover them for an adult child's death.

These limits do not apply to deaths caused by car crashes, unsafe property or other non-medical negligence. Lawmakers have debated changing this rule, so our team confirms the law in effect for each case. Medical negligence death claims also require Florida's pre-suit process; see our Florida medical malpractice page.

How does fault affect a Florida wrongful death recovery?

It depends on the type of case. Most death claims arising on or after March 24, 2023 follow modified comparative fault, which bars recovery if the person who died is found more than 50% at fault. Medical negligence deaths still follow pure comparative fault.

Consider a pedestrian killed crossing a Tampa road outside a crosswalk at night, struck by a speeding driver. A jury values the losses at $1,200,000.

• Pedestrian 40% at fault: recovery of $720,000.
• Pedestrian 51% at fault: recovery of zero.

If the same family's claim arose from a medical error and the patient was found 51% at fault, the family could still recover 49%. Lighting, speed data and witness accounts often decide these percentages. See our pedestrian accident practice.

How does a criminal case affect a Florida wrongful death claim?

The criminal case and the civil claim are separate. Prosecutors seek punishment; the family seeks compensation through the civil case.

A conviction can help establish liability in the civil case, but the civil claim can succeed without one because the standard of proof is lower. The two-year civil deadline continues to run during the criminal case. Families should talk with a lawyer early, even while charges are pending. Evidence gathered by investigators, such as toxicology results and crash reconstruction, may later become available for the civil case, and victim advocates in the prosecutor's office can help families follow the criminal proceedings.

What should a Florida family do first?

Focus on immediate needs, then take steps to protect the claim.

1. Contact the probate court about appointing a personal representative.
2. Obtain certified copies of the death certificate.
3. Keep medical bills, funeral receipts and pay records.
4. Avoid recorded statements to insurers.
5. Contact our team for a free, confidential case review. Our wrongful death practice and Florida injury overview have more information.