What Is a Wrongful Death Claim?
Under Florida law, a wrongful death claim can be brought when a death is caused by another person's or company's wrongful act, negligence, default, or breach of contract or warranty. The claim is available when your loved one could have sued for the injury if they had lived. When an injury leads to death, the injured person's own injury claim ends, and the wrongful death claim takes its place.
Wrongful death claims often arise from:
- Car, truck, and motorcycle crashes
- Pedestrian and bicycle crashes
- Drunk and impaired driving
- Medical malpractice
- Nursing home neglect
- Unsafe property conditions and inadequate security
- Defective products
- Boating and aviation accidents
- Construction and industrial accidents
- Elevator and escalator accidents
The cause of a death is not always clear at first. A crash that looks like driver error, for example, may turn out to involve a defective vehicle part. A careful investigation looks for every person and company that may share responsibility.
A consultation with us is free, and there is no obligation. If we take your case, you owe no fee and no costs unless we recover money for you.
Who Files the Claim and Who Can Recover
The personal representative files the case
In Florida, a wrongful death lawsuit is brought by the personal representative of your loved one's estate, not by each family member separately. The personal representative files one case for the benefit of the estate and all of the survivors, and every person who may share in the recovery must be named in the complaint.
The personal representative is usually the person named in the will. If there is no will, the surviving spouse generally has first preference, and the probate court makes the appointment. If no one has been appointed yet, that is usually one of the first steps.
Survivors
Florida law defines survivors as your loved one's spouse, children, and parents. Other blood relatives and adoptive brothers and sisters also count as survivors if they were partly or wholly dependent on your loved one for support or services. Under this law, "minor children" means children under 25.
What Compensation Can a Family Recover?
Florida's Wrongful Death Act spells out who can recover what:
- Each survivor: the value of lost support and services, from the date of the injury and into the future
- A surviving spouse: loss of companionship and protection, and mental pain and suffering
- Children under 25, and all children if there is no surviving spouse: lost parental companionship, instruction, and guidance, and mental pain and suffering
- Parents of a child under 25: mental pain and suffering (parents of a child 25 or older can recover this only if there are no other survivors)
- A survivor who paid them: medical and funeral expenses
- The estate: the person's lost earnings between the injury and death, medical and funeral expenses the estate paid, and in some cases the savings the person would likely have built up over a normal lifetime
When clear and convincing evidence shows that a defendant was personally guilty of intentional misconduct or gross negligence, punitive damages may also be available.
Attorney's fees and case costs are generally shared by the survivors and the estate in proportion to what each is awarded. While a lawsuit is pending, a court must approve any settlement that affects a minor survivor or a survivor who is legally incapacitated, or that any survivor objects to.
Florida Wrongful Death Laws You Should Know
Deadline to file a lawsuit
In most cases, a Florida wrongful death lawsuit must be filed within two years from the date of death. When the death was caused by medical malpractice, the medical malpractice deadlines apply instead, and they can run differently. Claims against a government agency also have written notice requirements and limits on damages. If you miss a deadline, your family can lose the claim entirely, so talk to a lawyer as early as possible.
Shared fault
Florida's comparative fault rules apply to wrongful death cases. If your loved one was partly at fault, the total recovery is reduced by that percentage. If your loved one is found more than 50% at fault, the family generally cannot recover. A survivor's own fault can reduce, or even bar, that survivor's recovery without affecting the others. The more-than-50% rule does not apply when the death was caused by medical negligence.
Deaths caused by medical malpractice
Medical malpractice death claims require a presuit investigation, a sworn medical expert opinion, and formal notice to the providers before a lawsuit can be filed. Florida law also limits who can recover some damages in these cases. Children 25 or older cannot recover for lost parental companionship or for their pain and suffering, and parents cannot recover for their pain and suffering when the child who died was 25 or older. Other damages, such as lost support and services and the estate's claims, are not affected. Repeal bills in 2025 and 2026 did not become law, so this rule is still in effect.
The Criminal Case and the Civil Case
When a death involves a crime, such as a drunk driving crash or an assault, there may be two separate cases. The state brings the criminal case to punish the crime. The family's wrongful death claim is a civil case that seeks compensation for their losses. Florida law allows a wrongful death claim even when the death was caused by a felony.
The civil case does not depend on the criminal one. To convict, the state must prove guilt beyond a reasonable doubt. In a civil case, the family must prove its claim by the greater weight of the evidence, a lower standard. A family can bring a wrongful death claim even if no one was charged or convicted.
If the person is convicted, Florida law can prevent them from denying the essential allegations of that crime in the civil case. And when a death results from an intentional wrong that fits Florida's murder or manslaughter laws, the family's wrongful death claim against the individual who did it can be filed at any time, and no arrest, charge, or conviction is required. This exception does not cover claims against companies or deaths from drunk-driving and other crashes that were not intentional; those keep the normal deadline.
Steps That Protect Your Family's Claim
Take the time your family needs, but don't wait too long to call. When you are ready, these steps help protect the claim:
- Keep important documents: Keep certified copies of the death certificate showing the cause of death, any police or crash report, medical records, and every medical and funeral bill and receipt.
- Preserve evidence: Save photos, videos, texts, and voicemails. Keep any vehicle, product, or other item involved as it is, and write down the names and phone numbers of witnesses.
- Be careful with insurance companies: Think twice before giving a recorded statement to an insurance company or signing anything it sends you. Don't accept a settlement check or sign a release before talking to a lawyer.
- Ask about the personal representative: Only the personal representative of the estate can file the wrongful death lawsuit. If no one has been appointed, we can explain the probate steps.
- Stay off social media: Avoid posting about the death, the people involved, or the case on social media.
- Call early: Evidence such as video can be lost quickly, and deadlines apply. A lawyer can send letters asking that evidence be preserved.
How We Help Your Family
- Free consultation: Tell us what happened. We'll explain, in plain terms, whether your family has a claim and what comes next.
- Personal representative: If one hasn't been appointed, we explain what the probate court requires so the claim can move forward.
- Investigation: We gather police and accident reports, medical records, witness statements, and other evidence. We look for every person and company that may be responsible and every insurance policy that may apply.
- Documenting your losses: We work with your family to show the support, services, and companionship your loved one provided, along with medical and funeral bills.
- Negotiation: Insurance companies may deny responsibility, argue the injury did not cause the death, question your family's losses, delay, or make a low early offer. We present the claim and negotiate for a fair settlement.
- Lawsuit and trial if needed: If the insurers won't make a fair offer, we file suit and prepare your family's case for a jury.