Who Has the Legal Right to File a Wrongful Death Lawsuit?

After a fatal crash, a death in a hospital or a killing by police, several family members may want to hold someone accountable. Florida law is specific about who can bring the lawsuit, who shares in the recovery and how much time there is to act. The rules are set out in the Florida Wrongful Death Act, sections 768.16 through 768.26 of the Florida Statutes, and they differ in important ways from what families read about other states online. Here is how standing works in a Florida wrongful death case.

In Florida, one person files: the personal representative

Unlike some states where a spouse or child can sue in their own name, Florida requires that a wrongful death action be brought by the personal representative of the deceased person’s estate. The personal representative files one lawsuit on behalf of everyone entitled to recover, the estate and each surviving family member, and the complaint must identify each survivor and the relationship that qualifies them.

The personal representative is appointed by the probate court in the county where the deceased lived. If there is a will, it usually names the person. If there is no will, the court appoints someone, with a preference for the surviving spouse, then the person chosen by a majority of the heirs. Opening the estate is a necessary first step in nearly every Florida wrongful death case, and an experienced wrongful death lawyer handles it as part of the representation. Disagreements within the family about who should serve are common, and the court resolves them.

Who counts as a “survivor”

Section 768.18 defines the survivors who can recover damages:

• The surviving spouse. A legally married spouse, including one who was separated but not divorced.
• Children. The Act treats children under 25 as “minor children” with broader rights. Adult children can also recover, with limits described below. Children born outside marriage are survivors of their mother automatically, and of their father if he recognized a responsibility to support them.
• Parents. Parents of a deceased child, with the broadest rights when the child was under 25.
• Dependent blood relatives and adoptive siblings. Any blood relative or adoptive brother or sister who was partly or wholly dependent on the deceased for support or services, such as a grandparent who was raising the deceased or a disabled sibling the deceased supported.

Some people are not survivors no matter how close they were. An unmarried partner or fiance has no claim under the Act. A stepchild who was never adopted has no claim. A sibling who was not financially dependent has no claim. These gaps are a frequent source of heartbreak, and they are one reason it matters to have a lawyer look carefully at the family’s situation before anything is filed.

What each survivor can recover

Section 768.21 assigns different damages to different survivors. Each survivor may recover the value of the support and services the deceased provided. A surviving spouse may also recover for loss of the deceased’s companionship and protection and for their own mental pain and suffering. Minor children, and all children if there is no surviving spouse, may recover for lost parental companionship, instruction and guidance and for mental pain and suffering. Each parent of a deceased minor child may recover for mental pain and suffering, and parents of an adult child may do so when there are no other survivors. Whoever paid the medical and funeral bills may recover them.

The estate has its own claim: lost earnings from the date of injury to the date of death, medical and funeral expenses charged to the estate, and, when the deceased is survived by a spouse or lineal descendant, or by a parent if the deceased was a minor, the loss of “net accumulations,” the money the deceased would likely have saved and left behind over a normal lifetime.

The medical negligence exception

Florida treats deaths caused by medical malpractice differently, and the rule is still in effect. Under section 768.21(8), when the death results from medical negligence, adult children (25 and older) cannot recover pain and suffering damages for the loss of a parent, and parents cannot recover them for the loss of an adult child. Critics call it the “free kill” law. The Legislature passed a repeal in 2025 that the Governor vetoed, and a 2026 repeal passed the House but stalled in the Senate, so the limitation remains the law. The estate can still recover economic losses such as medical and funeral expenses and lost net accumulations, and a surviving spouse or a child under 25 keeps full rights, so families who lost an adult relative to a medical error should still have the case evaluated rather than assume nothing can be done. Our medical wrongful death page addresses these claims in more detail.

Deadlines

A Florida wrongful death lawsuit must generally be filed within two years of the death. Claims against a city, county or state agency, including a police department, require written notice to the agency and a waiting period before suit and carry their own limits. Medical malpractice deaths require the presuit investigation and notice process under Chapter 766 before the lawsuit can be filed, which takes months on its own. Probate also takes time. Families should not wait to get advice.

How the money is divided

Because there is one lawsuit for everyone, the settlement or verdict is apportioned among the survivors and the estate according to their individual losses. When minor children are survivors, the court must approve the settlement and the division. The personal representative has a duty to all survivors, not only to the branch of the family that chose them, and the wrongful death lawyer’s job includes making sure every eligible survivor is identified and fairly treated.

The Injury Advocates is a Plantation-based personal injury firm serving Fort Lauderdale, Broward County and South Florida. If you have lost a family member and want to understand your rights, call (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 our wrongful death practice, or read what families need to know about wrongful death lawsuits.