Who Can File a Wrongful Death Lawsuit
in Florida?

The intricacies of recovering damages in a Florida wrongful death lawsuit

This article examines the ins and outs of filing a wrongful death claim in Florida, including who can file such a claim and who is eligible to receive compensation.

A wrongful death claim provides a means of seeking justice and compensation for a family member who has lost a loved one due to someone else’s negligence or recklessness. However, not everyone can file a wrongful death claim in Florida. 

In this article, we’ll closely examine who can file a wrongful death claim in the Sunshine State and who can receive compensation.

Definition of a wrongful death claim

A wrongful death claim is a civil action brought against a defendant who caused a person’s death through recklessness or negligence. 

The rationale behind a wrongful death lawsuit is that certain surviving family members of the deceased should be able to recover damages for the loss of their loved one.

Wrongful death lawsuits are commonly filed after fatalities that result from:

Although similar, wrongful death claims are different from survival lawsuits in Florida:

Wrongful death lawsuit	Survival lawsuit
Filed by the deceased’s estate so certain members of the deceased’s family can recover damages associated with losing their loved one, such as lost financial support and emotional distress.	Filed by the deceased’s estate to recover damages sustained by the deceased while the deceased was still alive.

Who is eligible to file a wrongful death claim in Florida?

You can find Florida’s Wrongful Death Act in Florida Statutes Sections 768.16-768.26. Under Florida Statute Section 768.20, the decedent’s personal representative must file a wrongful death claim. 

In Florida, the personal representative (also known as the “executor” in some states) is typically determined in one of the following ways:

• Named in the will: In most cases, the decedent will have named a personal representative in their last will and testament. 
• Surviving spouse or another heir: If the decedent did not name a personal representative in their will, or if the named person is unable or unwilling to serve, the surviving spouse—or another heir if there is no surviving spouse—may have the right to act as personal representative.  
• Appointment by the court: If no one is named in the will and there’s no surviving spouse or heir to take on the role, the court may appoint a personal representative.

It’s important to keep in mind that while the personal representative may file the wrongful death lawsuit, the personal representative isn’t the only one who can recover damages. Instead, the personal representative recovers damages for the benefit of the decedent’s survivors and estate.

Who can recover damages in a wrongful death lawsuit?

The decedent’s spouse, children, parents, and any blood relatives and adoptive brothers and sisters who are dependent on the decedent for support may recover damages in a wrongful death lawsuit. 

Let’s take a closer look at the parties and how damages are awarded:

• Survivors: Each survivor can claim compensation for both past and future support they would have received from the deceased. Factors taken into account when determining this loss of support can include the nature of the relationship between the survivor and the deceased, as well as the combined life expectancies of both the survivor and the deceased.
• Surviving spouse: The surviving spouse may also recover for loss of the decedent’s companionship and protection and for mental pain and suffering from the date of the injury. 
• Minor children: Minor children of the decedent (and all children if there’s no surviving spouse) may also recover for lost parental companionship, instruction, and guidance. 
• Parents: Each parent of a deceased minor child may also recover for mental pain and suffering.

Determining the appropriate damages in a Florida wrongful death lawsuit can be complicated. An experienced Florida personal injury attorney can explain in detail what damages you may be eligible to recover after the loss of a loved one. 

What must be proven in a wrongful death lawsuit?

When someone is killed as a result of a reckless or negligent act, the deceased's estate steps into the shoes of the deceased. In other words, the estate must prove liability the same way the deceased would have had to if they survived the negligent or reckless act.

Statute of limitations in Florida wrongful death lawsuits

The statute of limitations for wrongful death claims in Florida is typically two years from the date of the deceased person’s death. 

If the personal representative fails to file a wrongful death claim within this two-year period, the right to file a wrongful death claim will be forever barred. 

There are limited exceptions to the statute of limitations, such as cases involving fraudulent concealment or the discovery of new evidence. However, it's a good idea to consult with a personal injury attorney as soon as possible to ensure compliance with the applicable deadlines and preserve your rights.