Florida Wrongful Death Act: Who Can Sue, the Deadline, and What Families Can Recover

Losing someone because of another person's carelessness is a grief no legal process can answer. What the law can do is hold the responsible party accountable and replace some of what the family has lost. In Florida, that is governed by the Florida Wrongful Death Act, sections 768.16 through 768.26 of the Florida Statutes. Here is how it works, in plain language.

What counts as wrongful death in Florida

A death is wrongful under Florida law when it was caused by another's negligence, wrongful act, default, or breach of contract or warranty, and the person who died could have brought an injury claim had they survived. That covers car and truck crashes, unsafe property, defective products, workplace incidents caused by someone other than the employer, and medical negligence.

Who can file a wrongful death lawsuit in Florida

This surprises many families: in Florida, a spouse or child does not file the claim directly. It is brought by the personal representative of the person's estate, on behalf of the estate and every eligible survivor. If a will names a personal representative, that person usually serves; if not, the probate court appoints one. Opening the estate is often the first legal step.

The Act defines survivors as:

• The spouse.
• Children.
• Parents.
• Blood relatives and adoptive siblings who were partly or wholly dependent on the person for support or services.

The deadline: generally two years

Most Florida wrongful death claims must be filed within two years of the date of death. Deaths caused by medical negligence follow the medical malpractice timing rules instead, which can start the clock when the negligence was discovered and also set an outer limit. Two years passes quickly for a grieving family, and the evidence that proves fault, such as vehicle data, surveillance footage and witness memory, disappears much faster than that.

What damages can be recovered

The Act divides damages between the survivors and the estate. Survivors may recover:

• Lost support and services: the financial support and household services the person would have provided, past and future.
• For a surviving spouse: loss of companionship and protection, and mental pain and suffering.
• For minor children: loss of parental companionship, instruction and guidance, and mental pain and suffering. Under the Act, minor means under 25, and if there is no surviving spouse, all children may recover these damages.
• For parents of a minor child: mental pain and suffering. Parents of an adult child may recover them when there are no other survivors.
• Medical and funeral expenses that a survivor paid.

The estate may recover:

• Lost earnings from the date of injury to the date of death.
• Loss of prospective net accumulations, meaning what the person would likely have saved and left to the estate, in qualifying cases.
• Medical and funeral expenses the estate paid.

The medical malpractice exception

Florida law has long contained an exception for deaths caused by medical negligence: adult children cannot recover pain-and-suffering damages for the death of a parent, and parents cannot recover them for the death of an adult child. Repealing that rule has been debated in the Legislature in recent sessions, so if a death followed medical care, get current advice on where the law stands.

How fault affects a wrongful death claim

Florida's comparative fault rules apply. If the person who died is found partly responsible, the recovery is reduced by that percentage, and in most negligence cases, if they are found more than 50% at fault, the family recovers nothing. Medical negligence cases are the exception to that 50% bar. Insurers know the rule well, which is why early attempts to shift blame onto the person who died are so common.

In a wrongful death claim, the insurer's first job is to make the number smaller. Ours is to make sure every survivor's loss is counted.

How insurers value a wrongful death claim

From my two decades as a claims adjuster: carriers value these claims survivor by survivor and damage category by damage category. A claim that documents only funeral costs and lost wages leaves the largest categories, like a spouse's loss of companionship or a child's loss of guidance, to the adjuster's discretion. Every survivor needs to be identified, and every category needs evidence: earnings history, the role the person played in the household, and the relationships the family has lost.

What families should do now

• Don't give a recorded statement to any insurer before speaking with a lawyer.
• Keep the death certificate, medical bills, funeral receipts and pay records together.
• Write down the names of witnesses and anyone who contacted the family about the incident.
• Ask about opening the estate early, because nothing moves until a personal representative is appointed.
• Talk to a lawyer well before the two-year mark.