Losing a family member due to someone else's negligence is devastating — and the legal process that follows can feel overwhelming at the worst possible time. Florida's Wrongful Death Act provides a path for surviving family members to hold responsible parties accountable and recover compensation for their losses.
This guide explains who can file a wrongful death claim in Florida, what damages are available, and the steps you need to take to protect your rights.
What Is a Wrongful Death Claim?
A wrongful death claim is a civil lawsuit brought on behalf of a deceased person's survivors and estate when the death was caused by another party's negligence, recklessness, or intentional misconduct. Florida's wrongful death statute — Florida Statute § 768.16 through § 768.26 — governs these claims.
Wrongful death claims can arise from:
- Car accidents and truck accidents
- Medical malpractice
- Premises liability (slip and fall, negligent security)
- Defective products
- Workplace accidents
- Criminal acts (even if the perpetrator is also criminally prosecuted)
- Boating and watercraft accidents
Who Can File a Wrongful Death Claim in Florida?
Under Florida law, a wrongful death action must be filed by the personal representative of the deceased's estate — typically a surviving spouse, adult child, or other close family member appointed by the probate court. The personal representative files on behalf of both the estate and the surviving family members.
The following survivors may be entitled to damages:
- Surviving spouse
- Minor children (under 25 in cases of medical malpractice)
- Adult children, if the deceased had no surviving spouse
- Parents of a minor child who was killed
- Parents of an adult child who was killed, if the adult child had no surviving spouse or children
- Other blood relatives or adoptive siblings who were wholly or partly dependent on the deceased
Types of Damages Available
Florida's Wrongful Death Act allows recovery of several categories of damages, divided between what the estate can claim and what individual survivors can claim.
Estate Damages
- Lost net accumulations: The value of earnings and assets the deceased would have accumulated during their expected lifetime, minus what they would have spent on personal consumption
- Medical and funeral expenses: Costs incurred as a result of the injury that caused death
- Lost earnings from date of injury to death
Survivor Damages
- Loss of support and services: The financial support and services the deceased provided — income, childcare, household work
- Mental pain and suffering: Survivors can recover for their own mental anguish resulting from the death (available to spouse, minor children, and — if no spouse — adult children; parents can recover if the child had no spouse or minor children)
- Loss of companionship and protection (spouse): Damages for the loss of the deceased spouse's companionship, protection, and guidance
- Loss of parental companionship and instruction (minor children): Children can recover for loss of their parent's guidance, instruction, and nurturing
Medical Malpractice Wrongful Death: Important Differences
Medical malpractice wrongful death cases have significant differences from general negligence wrongful death claims in Florida:
- Adult children: In medical malpractice cases, adult children (over 25) of a deceased parent can only recover if there is no surviving spouse and if the child was dependent on the parent. In general negligence cases, adult children have broader rights.
- Pre-suit requirements: Medical malpractice claims require a pre-suit investigation period and expert affidavit before a lawsuit can be filed.
- Expert testimony: Medical malpractice cases typically require expert medical testimony to establish the standard of care and causation.
The Statute of Limitations: Two Years
Florida law requires that a wrongful death lawsuit be filed within two years from the date of the decedent's death. This deadline is strictly enforced — missing it almost certainly means losing the right to recover, regardless of how strong the case is.
In medical malpractice cases, the limitations period can be more complex, involving discovery rules and tolling provisions. Consulting an attorney promptly is critical.
The Relationship Between Criminal Cases and Civil Claims
When a death results from criminal conduct — such as a DUI accident or an assault — both criminal prosecution and a civil wrongful death claim can proceed simultaneously. They are independent proceedings:
- A criminal case is prosecuted by the state and can result in incarceration.
- A civil wrongful death claim is brought by the family and seeks monetary compensation.
- A criminal acquittal does not bar a civil claim — the standard of proof is lower in civil cases (preponderance of the evidence vs. beyond a reasonable doubt).
Additionally, if the defendant was convicted of DUI manslaughter or another crime resulting in death, that conviction is admissible in the civil case and can significantly strengthen the claim.
What Survivors Should Do
- Contact an attorney promptly. Evidence must be preserved, and the two-year deadline starts immediately. Delay can compromise the case.
- Preserve evidence. Don't allow vehicles to be repaired, scenes to be altered, or records to be destroyed. An attorney can send preservation letters to responsible parties.
- Obtain the death certificate and accident or incident reports. These are foundational documents.
- Document all expenses. Funeral and burial costs, any medical bills from the final injury, and ongoing financial losses should all be recorded.
- Identify all insurance coverage. This includes the at-fault party's liability insurance, your own underinsured/uninsured motorist coverage, life insurance, and workers' compensation if applicable.
Frequently Asked Questions
Can we pursue both a wrongful death claim and workers' compensation if my spouse died at work?
Workers' compensation provides exclusive coverage for work-related deaths in most cases — meaning you generally cannot also sue the employer in civil court. However, if a third party (not the employer) caused or contributed to the death — a defective piece of equipment, a negligent contractor, a dangerous premises owner — a wrongful death claim against that third party may be available in addition to the workers' comp claim.
What if the deceased was partially at fault?
Florida's comparative fault rules apply. If the deceased was partially at fault for the accident, the wrongful death damages are reduced by the decedent's percentage of fault. If the deceased was more than 50% at fault, the survivors cannot recover from the other party.
Is there a cap on wrongful death damages in Florida?
There is no cap on wrongful death damages in general negligence cases. In medical malpractice cases, non-economic damages (pain and suffering, loss of companionship) are subject to caps under Florida law, though the constitutionality and application of those caps has been subject to ongoing litigation.
Does it matter if there is no estate or the estate has no assets?
An estate can be opened even if the deceased had no assets, solely for the purpose of pursuing the wrongful death claim. A personal representative is appointed, and the claim proceeds on behalf of the estate and survivors.
Contact a Florida Wrongful Death Attorney
Wrongful death cases are among the most complex and emotionally difficult matters in personal injury law. The Desai Firm handles wrongful death claims throughout Northeast Florida — including St. Johns County, Flagler County, and Duval County. Contact us for a free, confidential consultation. There is no fee unless we recover on your behalf.