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.
Who Files the Case? (This Is a Common Suprise)
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).
What Damages are Available
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.
Deadlines (Statute of Limitations)
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).
Practical Process (How These Cases Usually Move)
- Open the estate / appoint the personal representative (probate step), because that’s who has standing to file.
- Investigate liability and causation (records, crash reports, product evidence, facility policies, witnesses, expert review as needed).
- File within deadlines and name/identify all survivors in the complaint.
- 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.