Quick Answer: Who can file a wrongful death lawsuit in Florida?
In Florida, only the personal representative of the deceased person's estate can file. That person files on behalf of the estate and the surviving spouse, children, parents, and any dependent relatives the statute recognizes.
Under the Florida wrongful death statute, a grieving spouse, parent, or child cannot file the lawsuit in their own name. Only the personal representative of the estate can bring the claim, and that one case carries the separate losses of every survivor and of the estate itself.
Many families do not realize that Florida law requires one person to bring the claim on everyone's behalf. It also affects how the case proceeds and which family members may receive compensation.
If your family lost someone in a crash in Melbourne or elsewhere in Brevard County, a Florida wrongful death attorney can help your family sort out who should serve as personal representative and what each relative may recover.
Key Takeaways About the Florida Wrongful Death Statute
- Only the decedent's personal representative may file a Florida wrongful death action, and the recovery is for the survivors and the estate.
- Florida defines survivors as the spouse, children, and parents, plus blood relatives and adoptive siblings who were partly or wholly dependent on the decedent.
- Each category of survivor can recover different damages, and the verdict must state the amount for each survivor and for the estate separately.
- For wrongful death claims, "minor children" means children under 25 years of age.
- Most Florida wrongful death actions must be filed within two years under section 95.11(5)(e).
Who Can File a Wrongful Death Claim in Florida?
The decedent's personal representative is the only person who can file a wrongful death claim in Florida. Section 768.20 directs the personal representative to recover all damages for the benefit of the survivors and the estate.
Any personal injury lawsuit the person had started before death ends, and the wrongful death action takes its place.
How a Personal Representative Is Chosen
A probate court appoints the personal representative by issuing letters of administration. Florida's Probate Code sets an order of preference in section 733.301, which depends on whether the person left a will:
- With a will: the personal representative named in the will, then a person selected by a majority in interest of the people who take under the will, then a beneficiary under the will.
- Without a will: the surviving spouse, then a person selected by a majority in interest of the heirs, then the heir nearest in degree.
- If no one in those groups applies, the court appoints a capable person.
In Brevard County, probate matters are handled by the Eighteenth Judicial Circuit, which serves Brevard and Seminole Counties. Opening the estate is often the first legal step a family takes, because no wrongful death claim can move forward until someone has authority to act.
The Survivors the Statute Recognizes
Florida law identifies which family members may benefit from a wrongful death claim. Under section 768.18, Florida's survivors are:
- The decedent's spouse
- The decedent's children
- The decedent's parents
- Any blood relatives who were partly or wholly dependent on the decedent for support or services
- Adoptive brothers and sisters who were partly or wholly dependent on the decedent
The definition includes a child born to an unmarried mother, and a child born to an unmarried father when the father had recognized a responsibility for the child's support.
Every potential beneficiary, including the estate, must be named in the complaint along with their relationship to the decedent.
What Damages Are Recoverable Under Florida's Wrongful Death Act?
Florida wrongful death damages depend on who the survivor is. Section 768.21 lists the damages each category can recover, and the jury states each survivor's award separately.
| Survivor or claimant | Damages the statute allows |
|---|---|
| Surviving spouse | Lost support and services; loss of companionship and protection; mental pain and suffering from the date of injury |
| Minor children (under 25) | Lost support and services; lost parental companionship, instruction, and guidance; mental pain and suffering |
| Adult children (25 and older) | Lost support and services; companionship, guidance, and mental pain and suffering only if there is no surviving spouse |
| Parents of a deceased minor child | Lost support and services; mental pain and suffering |
| Parents of a deceased adult child | Lost support and services; mental pain and suffering only if there are no other survivors |
| Dependent blood relatives and adoptive siblings | Lost support and services |
| Any survivor who paid them | Medical and funeral expenses caused by the injury or death |
| The estate | Lost earnings from injury to death; prospective net accumulations in qualifying cases; medical and funeral expenses charged to the estate |
The table shows why the same death can lead to very different recoveries for different relatives, and why identifying every survivor early matters.
Lost Support and Services
Each survivor may recover the value of lost support and services from the date of injury to death, and future losses reduced to present value. A Melbourne personal injury lawyer can help surviving family members understand and pursue these damages.
"Support" includes contributions in kind as well as money, and "services" means household tasks the decedent regularly performed that survivors will now have to pay for.
Courts can consider the survivor's relationship to the decedent, the decedent's probable net income available to that survivor, and the joint life expectancies involved.
Companionship, Guidance, and Mental Pain
The noneconomic damages in a Florida death case belong to specific family members. A surviving spouse may recover for lost companionship and protection and for mental pain and suffering.
Minor children, and all children when there is no surviving spouse, may recover for lost parental companionship, instruction, and guidance and for mental pain and suffering. Parents may recover for mental pain and suffering under the rules shown in the table.
What the Estate Recovers
The estate's claim is separate from the survivors' claims. It includes the decedent's lost earnings between injury and death, minus the support survivors would have received, and medical or funeral expenses charged to the estate.
The estate may also recover lost prospective net accumulations, meaning the savings the decedent likely would have left, when the survivors include a spouse or descendants, or in certain cases involving an adult decedent survived by a parent.
Amounts recovered for the estate are subject to valid creditor claims under probate law.
The Medical Negligence Exception
In claims for medical negligence, section 768.21(8) bars adult children and parents of an adult child from recovering companionship and mental pain damages.
How Fault, Insurance, and Injury Timing Affect a Florida Death Claim
A wrongful death claim exists only when the person who died could have sued for the injury had they survived, under section 768.19. The claim must establish that another party was legally responsible for the death.
Comparative Fault in a Death Case
Florida's modified comparative negligence rule in section 768.81 applies to wrongful death claims arising from crashes. If the decedent is found more than 50% at fault, the claim fails, and a lower share of fault reduces the damages.
A defense that applies to one particular survivor, such as that survivor's own fault, reduces only that survivor's recovery and leaves the others unaffected.
Insurance That Can Respond After a Fatal Crash
The Wrongful Death Act defines what the family can recover, but insurance usually determines what is collectible. Insurance claims get complicated after a fatal car or truck crash in Florida because multiple coverage sources may apply. These sources include:
- The at-fault driver's bodily injury liability coverage, if the driver carried any
- Commercial liability policies covering a company vehicle or a driver working for a business
- The decedent's own uninsured and underinsured motorist coverage, which applies to bodily injury that results in death
- The $5,000 personal injury protection death benefit, which is paid in addition to any PIP medical and disability benefits
Because Florida does not require drivers to carry bodily injury liability coverage, the family's own policies sometimes matter as much as the at-fault driver's.
Fatal Truck and Delivery Vehicle Crashes
Fatal commercial truck crashes, including Amazon and Walmart delivery truck accidents, raise questions that ordinary car crashes do not, such as which company employed or contracted the driver and which commercial policy applies. Those answers often decide whether there is enough insurance to cover what the statute allows each survivor to recover. Our Melbourne truck accident lawyers work to identify every company and policy involved so families aren’t left with less than the law allows.
When an Injury Becomes Fatal Later
A death that occurs days or weeks after a car accident, after hospital treatment for a severe head or spinal injury, still falls under the Wrongful Death Act.
Damages for lost support, pain and suffering, and the estate's lost earnings are measured from the date of injury, so the period of treatment before death is part of the claim.
How Long Do You Have to File a Wrongful Death Claim in Florida?
Most Florida wrongful death actions must be filed within two years under section 95.11(5)(e). Several rules can change that timeline:
- A wrongful death action against a person for an intentional killing described in the murder or manslaughter statutes may be brought at any time under section 95.11(11).
- A claim against a government defendant requires written notice to the government before suit under section 768.28(6), and a wrongful death claim presented to the Florida Department of Financial Services must be presented within two years after it accrues.
- Government claims are deemed denied if not resolved within 90 days after filing, and government liability is capped at $200,000 per person and $300,000 per incident under section 768.28(5), with any excess payable only by further act of the Legislature.
Because opening the estate takes time, families who wait several months after a death can find the two-year period much shorter than it first appears.
Steps Families Often Take in the First Months
Practical preparation can make a wrongful death claim move more smoothly once a personal representative is in place. The records families in Melbourne and across Brevard County usually gather include:
- Certified copies of the death certificate
- The will, if one exists, and any letters of administration once issued
- The crash report and the names of any insurance carriers involved
- Pay stubs, tax returns, and benefit statements that show the decedent's income and support
- Records of household services the decedent regularly handled, such as childcare or home maintenance
- Medical and funeral bills, with a note of who paid each one
Keeping these records organized helps the personal representative show each survivor's losses separately, which is how Florida juries are required to award them.
FAQs About Florida’s Wrongful Death Statute
Can a Florida wrongful death claim go forward if the driver faces criminal charges?
A Florida wrongful death claim can go forward while the driver faces criminal charges, because section 768.19 makes the wrongdoer liable even when the death was caused under circumstances that amount to a felony.
The civil claim and any criminal case are separate proceedings with different standards and goals.
What happens if a survivor dies before the wrongful death case ends?
Under section 768.24, a survivor who dies before final judgment recovers only lost support and services up to the date of his or her death. The personal representative pays that amount to the personal representative of the deceased survivor's estate.
Does a court have to approve a wrongful death settlement in Florida?
A Florida court must approve some wrongful death settlements: while the action is pending, a settlement that any survivor objects to, or that affects a survivor who is a minor or legally incompetent, takes effect only with court approval.
Money awarded to a minor child is protected under the Florida Guardianship Law.
Do creditors get paid from a wrongful death recovery in Florida?
Creditors reach only the estate's share of a Florida wrongful death recovery. Amounts recovered for the estate are subject to creditor claims that comply with probate law, while each survivor's award is stated separately and belongs to that survivor.
How are legal fees and costs divided in a Florida wrongful death case?
The personal representative pays attorneys' fees and litigation expenses, which are deducted from the survivors' and estate's recoveries in proportion to the amounts each receives. Expenses incurred for one particular survivor or the estate come out of that recovery only.
Take the Next Step Toward a Florida Wrongful Death Claim
Families should have the time and space to grieve without having to manage a complicated legal claim. No Client Left Behind helps families in Melbourne and throughout Brevard County pursue compensation while handling the legal process on their behalf.
No outcome can be promised in advance, but a Melbourne wrongful death lawyer can open the estate and file on your family's behalf. When your family is ready, call (786) 733-9509.
