Wrongful Death

A wrongful death claim exists when a person’s death is caused by another party’s wrongful act, negligence, default, or breach of contract/warranty, and the decedent could have sued for the injury if they had lived.

In Florida, the lawsuit must be filed by the decedent’s “personal representative” (the estate’s court-appointed representative).
The personal representative brings the case for the benefit of the decedent’s survivors and estate.

Survivors are defined by statute (not just “close family”), and can include:

  • Spouse
  • Children
  • Parents
  • Certain dependent blood relatives / adoptive siblings

Florida also defines “minor children” as under age 25 (for wrongful death purposes).


Florida requires that all potential beneficiaries (survivors + estate) be identified in the complaint.

Damages are mainly split into (A) survivor damages and (B) estate damages.

A) Survivor damages (typical)
  • Lost support and services (past and future), reduced to present value.
  • Spouse
    • loss of companionship/protection + mental pain and suffering.
  • Children
    • Minor children can recover for lost parental companionship/instruction/guidance + mental pain and suffering
    • All children can recover those damages only if there is no surviving spouse.
  • Parents
    • of a deceased minor child: mental pain and suffering
    • of an adult child: mental pain and suffering only if there are no other survivors.
  • Medical/funeral expenses paid by a survivor can be recovered by that survivor.
B) Estate damages (typical)
  • The personal representative may recover for the estate;
    • the decedent’s lost earnings from injury to death (with offsets), and in some cases lost “net accumulations” the decedent likely would have saved.
  • medical/funeral expenses that became a charge against the estate (or were paid on the decedent’s behalf).
  • Estate awards are generally subject to creditor claims in probate.

A Key Florida-Specific Limitation

If the injury results in death, Florida provides that the decedent’s personal injury claim does not “survive” as a separate case—it abates, and the recovery is through wrongful death damages. This is why Florida wrongful death cases often do not include the decedent’s own pain and suffering as a separate damage item.


General rule: wrongful death actions must be commenced within 2 years.

There are special rules/exceptions, including an exception allowing certain intentional-tort deaths (from acts described in specified homicide statutes) to be brought without the normal time limit against a natural person.

Because deadlines can turn on details (who the defendant is, what caused the death, when
discovery occurred, tolling rules), treat the 2-year period as a hard planning constraint.


Two Big “special situation” Buckets

1) Medical Negligence (Medical Malpractice) Deaths

Medical negligence claims have pre-suit requirements (notice, screening period, informal discovery), and serving the notice can toll the statute of limitations during the pre-suit period.

Also, Florida has a major carve-out in § 768.21(8): for medical negligence claims, the statute says the mental pain/suffering damages in subsections (3) and (4) are not recoverable by

  • adult children (for their deceased parent)
  • parents of an adult child.

This is the provision often called the “free kill” issue in media/politics, and it has been the subject of recent legislative activity. For example: a repeal bill passed in 2025 but was vetoed, and similar reform proposals have been discussed heading into the 2026 session.

Separately, Florida’s Supreme Court held unconstitutional (in a wrongful death medical malpractice context) a statutory cap on noneconomic damages under § 766.118.

2) Claims Against the State/Cities/Counties (Sovereign Immunity)

If the defendant is a government entity, Florida’s sovereign immunity waiver statute:

  • caps recovery per person/per incident (commonly $200,000 / $300,000, with amounts above that requiring legislative action in many cases)
  • imposes pre-suit notice/claims-presentment requirements (including a 2-year presentment requirement for wrongful death claims in the statute).


  1. Open the estate / appoint the personal representative (probate step), because that’s who has standing to file.
  2. Investigate liability and causation (records, crash reports, product evidence, facility policies, witnesses, expert review as needed).
  3. File within deadlines and name/identify all survivors in the complaint.
  4. Compute damages by category (each survivor’s claim is different under the statute).

If you or someone you know has lost someone due to the negligence of a third person, please contact our office for a free consultation regarding your rights to compensation.

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