Florida wrongful death statute of limitations, damage caps, how to find the right lawyer, and more
A wrongful death can happen so fast that we can barely register that it occurred. Maybe it was a pedestrian who was hit in the crosswalk. It could have been a particularly bad fender-bender. Perhaps it was a doctor who accidentally left a sponge inside your relative’s chest cavity during an operation, which necrotized. (Yes, it’s happened. Several times. In various body parts.)
The point is that these things happen, and people want someone to blame. Sometimes there just isn’t someone to blame because the thing that happened was an accident, but we really, really need some kind of compensation for what happened. That is where wrongful death lawsuits come in.
What does filing a wrongful death suit mean?
A wrongful death is a death that was caused by the negligent act of another individual or entity.
These can occur because of any number of situations: car accidents, pedestrian collisions, defective products, medical malpractice and more.
The filing of a wrongful death suit indicates that you are seeking financial compensation to help offset losses you have experienced from the negligent death of your loved one. It could also illustrate that you seek justice for their untimely passing.
What’s the difference between wrongful death and murder?
A murder and a wrongful death are very different.
Murders are intentional acts to end another person’s life. They are generally pre-planned events, even though there are such things as “negligent homicides.” There are different degrees of murder depending on how much premeditation there was prior to the event.
A wrongful death is generally a terrible accident caused by somebody’s neglect or carelessness.
Murders are judged in criminal courts and punished by juries; defendants are sent to prison or even executed in certain jurisdictions.
Wrongful deaths, on the other hand, are tried before a civil court, and the goal is to provide compensation to a grieving family for their economic and non-economic losses.
Who can file a wrongful death claim?
In Florida, Statute Section 768.19 requires that the decedent’s Personal Representative, or the individual named by the deceased person’s will, bring the case before the probate court. If there is no will, then an appropriate Personal Representative will be named by the court.
Although the wrongful death claim is brought by the Personal Representative, that person is technically acting on behalf of the estate.
Any action that person takes is for the benefit of the decedent, and the wrongful death claim must name every interested person in the estate as well. That means every spouse, blood relative, parent or adoptive relative who was dependent on the decedent for support or services while he or she was alive.
Florida wrongful death statute of limitations
In Florida, the statute of limitations for a wrongful death claim is two years from the date of death.
Under certain circumstances, this can be “tolled,” or postponed, but that is rare. You would need to speak to an attorney about that.
What damages can I collect from a wrongful death claim?
As wrongful death claims are brought in civil court, they are resolved solely through monetary means. Florida Statutes section 768.21 sets forth the guidelines for awarding damages in this sort of lawsuit.
This is split into two parts, meaning what the survivors can recover and what the estate can recover.
Think of the estate as a shell, its own little entity that is waiting to be filled. The estate can recover:
- Loss of net accumulations (the jury’s determination based on economic evidence of how much the decedent would have had left in his estate, such as future business or employment income, investments, etc.)
- Lost earnings
- Medical and funeral expenses
Survivors can recover damages for:
- Lost support and services
- The loss of the decedent’s companionship, protection, guidance and instruction
- Pain and suffering
- Medical and funeral expenses (when they were paid by the survivors)
Meanwhile, under the Florida Wrongful Death Act, adult children 25 and older can only recover lost parental companionship, guidance and instruction if there is no surviving spouse.
Who can sue in a Florida wrongful death case?
Five types of survivors can recover wrongful death damages (i.e., pain and suffering):
- The surviving spouse
- Minor children
- Adult children (when there is no surviving spouse)
- Each parent of a deceased minor child; and
- The parents of an adult child (when there are no other survivors)
Do you have a wrongful death case?
The most important question to ask in a wrongful death claim is if the defendant has an insurance policy or access to money.
If that individual or entity does not have insurance coverage, there might not be any way to make them pay for what they did. This would be a question to discuss with an attorney.
Is there a difference between the death of an adult and the death of a child?
Determining the amount of damages due is the most prominent difference between the wrongful death of an adult and the wrongful death of a child, as crass and awful as it sounds.
Parents’ damages after the loss of a child are limited to their financial damages, which are likely to be small. Children have not had the opportunity to contribute to the household, and they have not had any sort of income. Their loss is terrible and painful, but courts think in dollars and cents. They will be thinking of actuarial charts, the damages determined by the child’s life expectancy, health and earning potential.
For an adult who has made Social Security contributions versus a child who has not, an actuary can make various determinations based on potential earning capacity. A lot of it is left up to cold, unfeeling speculation.
What to look for in a Florida wrongful death attorney
Finding the perfect attorney will offer you peace of mind during what is undoubtedly a tumultuous, terrible time in your life. It is important to choose someone you feel comfortable with, who will go the extra mile for you, and who will make sure your case is always a top priority.
Personal Injury Attorney Interview Sheet
Worksheet with questions to ask a personal injury attorney to help determine if he or she will be a good fit for your case
Download in PDF format
Always make sure to read reviews from a wide variety of clients, and see how much experience the attorney has in dealing with wrongful death cases.
Resources to help you hire the best Florida wrongful death lawyer
If you have lost a loved one and you need some extra help, here are some resources to help you through this difficult time:
- Choosing a personal injury attorney – interview questions
- Preparing to meet with a personal injury attorney
- When do you NOT need an attorney after an accident?
- How to talk to a lawyer
- How damages are calculated
- Negotiating lawyers’ fees – how do accident lawyers charge? Are there any hidden costs?
See our guide Choosing a personal injury attorney.