Who Can File a Wrongful Death Claim in Florida?

Losing someone you love is devastating. When that loss was caused by someone else’s carelessness, such as a drunk driver, an unsafe property, a defective product, or a medical mistake, grief is often mixed with anger and questions about what comes next.

Florida’s Wrongful Death Act allows families to hold the responsible party accountable and recover compensation for their loss. But the law has specific rules about who can bring the claim and which family members can recover. Here is what families in Broward and Miami-Dade County should know.

What is a wrongful death?

In Florida, a wrongful death is a death caused by another person’s or company’s negligence, wrongful act, or breach of contract or warranty. In simple terms, if the person who died could have brought a personal injury claim had they survived, their family may be able to bring a wrongful death claim.

Common causes of wrongful death include:

Car, truck, motorcycle, and pedestrian accidents
Medical malpractice, such as a misdiagnosis or surgical error
Nursing home abuse and neglect
Falls and other dangerous property conditions
Workplace accidents and toxic exposure
Defective products

The claim is filed by the estate’s personal representative

This is the part that surprises many families. In Florida, individual family members don’t each file their own wrongful death lawsuit. Instead, the claim is brought by the personal representative of the deceased person’s estate. The personal representative files one claim on behalf of the estate and all of the surviving family members who are entitled to recover.

The personal representative is the person named in the deceased person’s will to handle their estate. If there is no will, or the named person can’t serve, the court appoints one. Very often the personal representative is a close family member, such as a spouse, adult child, or parent.

If an estate hasn’t been opened yet, an attorney can help with that process so the wrongful death claim can move forward.

Which family members can recover?

Although the personal representative files the claim, the compensation goes to the estate and to the “survivors” defined by Florida law. Survivors generally include:

The deceased person’s spouse
The deceased person’s children
The deceased person’s parents
Other blood relatives and adoptive siblings, but only if they depended on the deceased person, partly or fully, for financial support or services

One important detail: for wrongful death purposes, Florida defines “minor children” as children under age 25, not under 18. This affects what kinds of damages children can recover.

What compensation is available?

What each family member can recover depends on their relationship to the person who died. In general:

A surviving spouse may recover for lost financial support and services, the loss of companionship and protection, and mental pain and suffering.
Children under 25 may recover for lost support, the loss of a parent’s companionship, instruction, and guidance, and mental pain and suffering. If there is no surviving spouse, children of all ages may generally recover for these losses.
Parents of a child under 25 may recover for their mental pain and suffering. Parents of an adult child may be able to recover for pain and suffering when there are no other survivors.
Dependent relatives may recover the value of the financial support and services they lost.

The estate may also recover certain losses, such as the deceased person’s lost earnings between the injury and death, medical and funeral expenses paid by the estate, and in some cases the savings the person would likely have built up over their lifetime.

A special rule for medical malpractice deaths

Florida has an unusual rule, often called the “free kill” law, that applies only when a death is caused by medical malpractice. In those cases, adult children age 25 or older cannot recover damages for pain and suffering over the loss of a parent, and parents cannot recover those damages for the loss of a child who was 25 or older.

Florida lawmakers have tried to repeal this rule several times, but it remains in effect. Even so, families affected by it may still have options. Economic losses, such as medical bills, funeral costs, and lost financial support, can still be recovered, and some deaths that happen in a hospital or care facility may not legally count as medical malpractice. An attorney can review whether this rule actually applies to your family’s situation.

How long do you have to file?

In most cases, a Florida wrongful death claim must be filed within two years of the date of death. Medical malpractice cases have their own timing rules and require an investigation and expert review before a lawsuit can be filed, so they can take longer to prepare.

Two years may sound like a long time, but important evidence, such as accident scene footage, witness memories, and records, can disappear much sooner. Talking with an attorney early helps protect your family’s rights.

What families can do now

In the weeks after a loss, it helps to:

Get copies of key documents, such as the death certificate, police or accident reports, and medical records.
Keep bills and receipts for medical care, funeral and burial costs, and other expenses.
Be careful with insurance companies. Don’t give recorded statements or sign releases before speaking with a lawyer.
Write down what you know about how the death happened, including names of witnesses and anyone you’ve spoken with.
Talk to a wrongful death attorney about who should serve as personal representative and what claims your family may have.

We’re here for your family

No amount of money can replace someone you love. But a wrongful death claim can hold the responsible party accountable and ease the financial strain on your family during an incredibly difficult time.

The attorneys at Kane & Vital have helped families across Broward and Miami-Dade County for more than 30 years, with offices in Sunrise and North Miami. We handle the legal details with care so your family can focus on healing. Consultations are free.

Learn more about our wrongful death practice and medical malpractice practice, or contact us today. You can also call (954) 523-5123.

This article provides general information and is not legal advice. Reading it does not create an attorney-client relationship. Every case is different, so please contact an attorney about your