Losing a family member is hard enough. Losing one because someone else was careless adds a question no family should have to ask: what now? Florida’s Wrongful Death Act answers part of it. It gives the surviving family a civil claim against the person or company responsible, separate from any criminal case, to recover the support, companionship and financial security that was taken. Here is how these claims work, who can bring one, what they can recover, and how fault is proven.
What a wrongful death claim is
A wrongful death claim is a civil lawsuit brought when a person dies because of another party’s negligence, recklessness or intentional act. It is governed by sections 768.16 through 768.26 of the Florida Statutes. A criminal prosecution, if there is one, seeks to punish the defendant. The civil claim seeks to compensate the family, and it can succeed even where there is no criminal charge or the defendant is acquitted, because the burden of proof is lower.
Wrongful death claims arise from the same events as injury claims: car, truck and motorcycle crashes; drunk driving; medical malpractice; nursing home neglect; drownings; defective products; falls and other premises hazards; police shootings and excessive force; and workplace accidents caused by someone other than the employer.
Who can bring the claim
Florida is specific about this. The lawsuit is filed by the personal representative of the deceased person’s estate, on behalf of the estate and the survivors. The personal representative is usually named in the will or appointed by the probate court, which means an estate has to be opened. The survivors who may recover include:
- The surviving spouse
- Children, including adult children
- Parents
- Blood relatives and adoptive siblings who were partly or wholly dependent on the deceased for support or services
Each survivor’s recovery depends on their relationship and, in some cases, on who else survives.
What families can recover
Florida separates the survivors’ damages from the estate’s damages.
Each survivor may recover the value of the support and services the deceased provided, from the date of injury to the death and into the future, with interest.
A surviving spouse may also recover for the loss of the deceased’s companionship and protection and for their own mental pain and suffering from the date of injury.
Minor children, which Florida defines for this purpose as children under 25, may recover for lost parental companionship, instruction and guidance and for mental pain and suffering. Adult children may recover these damages if there is no surviving spouse.
Parents of a deceased minor child may recover for their own mental pain and suffering. Parents of an adult child may do so if there are no other survivors.
Medical and funeral expenses are recoverable by whoever paid them.
The estate may recover the deceased’s lost earnings from injury to death, the loss of prospective net accumulations the estate would have been expected to receive, and medical and funeral expenses charged to the estate.
There is one important exception. In medical malpractice deaths, Florida law currently bars adult children (25 and older) and the parents of adult children from recovering non-economic damages. This provision is widely known as the “free kill” law, and its status has been the subject of repeated legislative debate; see our update on Florida’s free kill law.
Proving fault: the four elements
A wrongful death claim is a negligence claim with a different plaintiff. We must prove:
- Duty. The defendant owed the deceased a duty of care: a driver to other motorists, a doctor to a patient, a property owner to a guest, a manufacturer to a consumer.
- Breach. The defendant failed to meet that duty: a trucking company that kept an exhausted driver on the road past hours-of-service limits, a hospital that ignored a protocol, a manufacturer that hid a known defect.
- Causation. The breach was the direct and proximate cause of the death. This is the most contested element, and it is where medical experts and accident reconstruction matter.
- Damages. The death caused the losses described above.
Corporate defendants
Some of the most serious wrongful death cases involve corporate negligence: trucking companies, product manufacturers, construction firms, nursing home chains and hospitals. These defendants have insurers and legal teams whose job is to blame the deceased and settle before the full loss is known. Proving a corporate case means obtaining internal records: driver logs and electronic logging data, maintenance records, safety reports, recall analyses and emails. Florida’s discovery rules allow it, but it takes a firm with the resources to do it.
Deadlines
A Florida wrongful death lawsuit must generally be filed within two years of the date of death. Medical malpractice deaths carry pre-suit requirements, and deaths caused by a government agency require written notice before suit. Because an estate must be opened before the claim can be filed, families should not wait.
Your family deserves a voice
No lawsuit restores what was lost. What it can do is hold the responsible party accountable and provide the financial security the deceased would have wanted for their family. Call The Injury Advocates at (754) 812-8444 or 833-DARFOOR, or send us a message. The consultation is free, and you owe no fees or costs unless we recover for you. Learn more about how our wrongful death lawyers handle these cases, including fatal truck accidents, drunk driving deaths and medical negligence.
Kweku Darfoor is the founder of The Injury Advocates (Darfoor Law Firm, P.A.), a member of The Florida Bar since 2014, and a Plantation-based personal injury attorney representing seriously injured people and their families across Fort Lauderdale, Broward County, and South Florida. This content is for general information and is not legal advice.
