Losing a loved one because of someone else’s negligence is devastating, and the legal process that follows can feel bewildering on top of the grief. Florida has a specific law — the Florida Wrongful Death Act — that governs who can seek compensation, what can be recovered, and how long the family has to act. Understanding its framework can help a family make informed decisions at an incredibly difficult time.
What is a wrongful death claim?
A wrongful death claim allows certain family members and the deceased person’s estate to recover compensation when a death is caused by another party’s wrongful act or negligence.
It’s a civil claim, entirely separate from any criminal case.
Common causes include car and truck crashes, medical malpractice, defective products, and unsafe premises.
Who can actually file — and who benefits?
This is where Florida’s rules surprise many families. Under the Florida Wrongful Death Act, the lawsuit can only be brought by the personal representative of the deceased person’s estate — not by individual family members on their own — under Florida Statute § 768.20. The personal representative files on behalf of both the estate and the “survivors.”
Florida law defines “survivors“ in Florida Statute § 768.18 as the spouse, children, and parents of the deceased, along with certain blood relatives or adoptive siblings who were partly or wholly dependent on the deceased for support or services.
Who qualifies as a survivor directly affects what damages can be claimed, which is one reason families often ask a wrongful death lawyer to identify every eligible survivor and determine who should serve as personal representative before filing.
What can be recovered?
Florida separates the damages available to survivors from those available to the estate under Florida Statute § 768.21.
Survivors may recover:
- The value of lost support and services the deceased provided;
- Loss of companionship and protection and mental pain and suffering for a surviving spouse;
- Loss of parental companionship, instruction, and guidance and mental pain and suffering for minor children — which Florida’s Wrongful Death Act defines as children under age 25 — and for all children if there is no surviving spouse;
- Mental pain and suffering for parents of a deceased minor child and, if there are no other survivors, parents of a deceased adult child; and
- Medical and funeral expenses a survivor paid directly.
There is an important exception for wrongful death claims involving medical negligence. In those cases, adult children cannot recover the damages available under the Act for lost parental companionship, instruction, and guidance or mental pain and suffering, and parents of an adult child cannot recover damages for mental pain and suffering.
The estate may recover the deceased person’s lost earnings from the date of injury to the date of death, less lost support of survivors as provided by the statute, along with prospective net accumulations in certain circumstances. The estate may also recover qualifying medical and funeral expenses that became a charge against the estate or were paid by or on behalf of the deceased.
The deadline to act
In Florida, a wrongful death claim generally must be filed within two years under Florida Statute § 95.11(5)(e). Different rules can apply in certain cases, including wrongful death claims arising from medical malpractice, so families should not assume that every claim is governed by the same deadline.
The bottom line: it’s wise not to wait. Because the lawsuit must be brought by the personal representative, steps may first be necessary to have a personal representative appointed. Evidence also fades: vehicles are repaired, scenes change, and witnesses’ memories dim.
How fault affects a wrongful death recovery
For negligence claims subject to Florida Statute § 768.81, Florida applies modified comparative negligence with a 51 percent bar. If the deceased is found partly responsible for the accident, the recovery is reduced by that percentage. If the deceased is found more than 50 percent at fault, the claim generally cannot recover damages.
The 51 percent bar does not apply to wrongful death claims arising from medical negligence. Comparative fault can still reduce the recovery in a medical-negligence case, but being more than 50 percent at fault does not create the same complete bar.
Because insurers have a strong incentive to shift blame onto the person who died, carefully establishing how the accident happened is central to these cases.
Modified comparative negligence hypothetical
Suppose a pedestrian is killed while crossing Biscayne Boulevard in Miami outside a marked crosswalk. The driver who strikes him is speeding and looking at a phone, but the pedestrian also bears some responsibility for crossing where he did. A jury determines that the family’s wrongful death damages total $1 million and finds the driver 70 percent at fault and the pedestrian 30 percent at fault. The pedestrian’s 30 percent share of fault would reduce the recovery by 30 percent, leaving $700,000.
Now change the facts slightly. If the jury instead found the pedestrian 55 percent at fault and the driver 45 percent at fault, Florida’s modified comparative negligence rule would generally prevent the family from recovering damages at all. If the pedestrian were found exactly 50 percent at fault, however, the claim would not be completely barred; the recovery would be reduced by 50 percent.
What families can do
- Preserve evidence — keep documents, photos, vehicles, or products involved, and gather any accident or police reports.
- Get names and contact information for witnesses.
- Keep records of medical and funeral expenses and of the support the deceased provided the family.
- Take steps to have a personal representative appointed promptly, since the personal representative must bring the claim.
- Be careful with insurers — avoid recorded statements and quick settlement offers before understanding the full value of the claim.
No lawsuit can undo the loss of a loved one. But Florida’s Wrongful Death Act exists to hold the responsible party accountable and to ease the financial burden a family shouldn’t have to carry alone. Knowing who must file, who qualifies as a survivor, what can be recovered, and the applicable filing deadline is the foundation for protecting the family’s rights.