Under Florida's Wrongful Death Act (§§768.16–768.26), the claim is filed by the personal representative of the deceased person's estate on behalf of the estate and qualifying survivors. Recoverable damages depend on which survivors exist. Most wrongful death actions must be filed within two years of the date of death.
| Key question | Florida answer |
|---|---|
| Governing law | Florida Wrongful Death Act, Fla. Stat. §§768.16–768.26. |
| Who files the lawsuit? | The personal representative of the decedent's estate. |
| Who benefits? | Statutory survivors — spouse, children, parents, and certain dependents. |
| Damages for survivors | Lost support and services, companionship, guidance, mental pain and suffering. |
| Damages for the estate | Lost earnings, net accumulations, medical and funeral expenses. |
| Deadline to file suit | Generally 2 years from the date of death. |
What Florida's Wrongful Death Act Provides
Florida's Wrongful Death Act, Fla. Stat. §§768.16–768.26, allows recovery when a death is caused by another party's wrongful act, negligence, default, or breach of contract or warranty. The statute's stated purpose is to shift the losses resulting from a wrongful death from the survivors to the wrongdoer.
These claims arise from motor vehicle and trucking collisions, medical negligence, defective products, premises hazards and negligent security, nursing home neglect, workplace and construction incidents, and drowning and boating accidents.
Only the Personal Representative May File
Florida structures wrongful death differently from most injury claims. The action is filed by the personal representative of the decedent's estate — not by family members individually.
The personal representative brings a single action on behalf of both the estate and all statutory survivors. Where the decedent left a will naming an executor, that person typically serves; otherwise the probate court appoints one. If no personal representative has yet been appointed, that step must be completed before the wrongful death action can proceed, which adds time families frequently do not anticipate.
Who Counts as a "Survivor"
The Act defines survivors specifically. Depending on circumstances, they may include:
- The surviving spouse
- Children — with the treatment of adult children depending on the circumstances and whether a surviving spouse exists
- Parents — including for the death of an adult child in defined circumstances
- Blood relatives and adoptive siblings partly or wholly dependent on the decedent for support or services
Which survivors qualify, and for which categories of damages, depends on the family structure and the nature of the claim. This is one of the more technical areas of the Act and benefits materially from legal guidance.
Damages Under the Act
| Recovered by | Categories of damages |
|---|---|
| Surviving spouse | Loss of companionship and protection; mental pain and suffering; lost support and services |
| Minor children | Lost parental companionship, instruction, and guidance; mental pain and suffering |
| Parents of a deceased minor | Mental pain and suffering |
| Dependent survivors | Lost support and services from the date of injury |
| Any survivor who paid | Medical and funeral expenses |
| The estate | Lost earnings from injury to death; loss of prospective net accumulations; medical and funeral expenses paid by the estate |
"Loss of prospective net accumulations" — the value of what the decedent would likely have saved and left to the estate over a normal working life — is often substantial in the death of a working-age person, and typically requires economic analysis to establish.
The Two-Year Deadline and Why Families Should Not Wait
A Florida wrongful death action generally must be filed within two years of the date of death. Certain circumstances can affect that period, and different rules may apply to particular categories of claims.
Two years can feel like ample time while a family is grieving. In practice it compresses quickly, because a personal representative must first be appointed through probate, evidence must be preserved before it disappears, and investigation of a fatal incident is more involved than a typical injury case. Speaking with an attorney early does not commit a family to litigation — it preserves the option.
The Civil Case Is Separate From Any Criminal Case
Where a death results from conduct that is also criminal — impaired driving, for example — the criminal prosecution and the civil wrongful death action proceed on separate tracks. The State controls the criminal case, and it addresses punishment rather than compensating your family.
The civil claim is yours, uses a lower burden of proof, and can succeed even where a criminal case results in acquittal or is never brought. Restitution ordered in a criminal case rarely approaches the actual losses a family sustains.
What an Investigation Involves
Fatal incidents require reconstructing events without the most important witness. That typically means securing law enforcement and medical examiner records, preserving vehicles, equipment, or premises before alteration, obtaining surveillance and electronic data quickly, interviewing witnesses while recollection is fresh, retaining reconstruction or medical professionals where warranted, and identifying every responsible party and applicable insurance policy.
How RNC Legal Handles Wrongful Death Matters
We guide families through the personal representative appointment, conduct the investigation while evidence remains available, identify all responsible parties and coverage, work with economic and life-expectancy professionals to establish the full measure of loss, and handle communications with insurers so the family does not have to.
We understand these are not ordinary files. We represent families throughout Florida from our Fort Lauderdale office, with the discretion these matters require, on a contingency fee basis — there is no attorney fee unless we recover.
Frequently Asked Questions
Who has the legal right to file a wrongful death lawsuit in Florida?
Only the personal representative of the deceased person's estate may file. The action is brought on behalf of the estate and all qualifying survivors together — individual family members do not file separate lawsuits. If no personal representative has been appointed, that probate step must be completed first, which is one reason to consult an attorney early.
Which family members can actually recover?
Florida's Act defines 'survivors' to include the spouse, children, and parents, along with certain blood relatives and adoptive siblings who were partly or wholly dependent on the decedent for support or services. Which survivors qualify for which categories of damages depends on the family structure and the circumstances of the death.
What damages are available?
Survivors may recover for lost support and services, loss of companionship and protection, and mental pain and suffering, with the specific categories varying by survivor. The estate may separately recover lost earnings from the date of injury to death, loss of prospective net accumulations, and medical and funeral expenses it paid.
How long do we have to file?
Generally two years from the date of death. Because probate steps must often be completed first, and because certain circumstances can affect the deadline, families should seek guidance well before the two-year mark rather than near it.
What if a criminal case is also pending?
A civil wrongful death action is separate from any criminal prosecution and proceeds independently. The burden of proof is lower in the civil case, so a civil claim can succeed even where a criminal case does not result in conviction. The two matters can, however, affect each other's timing and evidence.
Consultations are free and confidential, and injury cases are handled on a contingency fee — you owe no attorney fee unless we recover for you.
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