{"id":164,"date":"2026-01-05T20:58:25","date_gmt":"2026-01-05T20:58:25","guid":{"rendered":"http:\/\/bobet.alexiskomar.com\/?page_id=164"},"modified":"2026-02-12T17:02:04","modified_gmt":"2026-02-12T17:02:04","slug":"wrongful-death","status":"publish","type":"page","link":"https:\/\/bobetlaw.com\/index.php\/practice-areas\/wrongful-death\/","title":{"rendered":"Wrongful Death"},"content":{"rendered":"\n

A wrongful death claim exists when a person\u2019s death is caused by another party\u2019s wrongful act, negligence, default, or breach of contract\/warranty, and the decedent could have sued for the injury if they had lived.<\/p>\n\n\n\n

Who Files the Case?<\/strong> (This Is a Common Suprise)<\/strong><\/h2>\n\n\n\n

In Florida, the lawsuit must be filed by the decedent\u2019s \u201cpersonal representative\u201d (the estate\u2019s court-appointed representative).
The personal representative brings the case for the benefit of the decedent\u2019s survivors and estate.<\/p>\n\n\n\n

Survivors are defined by statute (not just \u201cclose family\u201d), and can include:<\/p>\n\n\n\n

    \n
  • Spouse<\/li>\n\n\n\n
  • Children<\/li>\n\n\n\n
  • Parents<\/li>\n\n\n\n
  • Certain dependent blood relatives \/ adoptive siblings<\/li>\n<\/ul>\n\n\n\n

    Florida also defines \u201cminor children\u201d as under age 25<\/strong> (for wrongful death purposes).<\/p>\n\n\n\n

    \n\n\n\n

    What Damages are Available<\/strong><\/h2>\n\n\n\n

    Florida requires that all potential beneficiaries (survivors + estate) be identified in the complaint.<\/p>\n\n\n\n

    Damages are mainly split into (A) survivor damages and (B) estate damages.<\/p>\n\n\n\n

    A) Survivor damages (typical)<\/strong><\/summary>\n
      \n
    • Lost support and services (past and future), reduced to present value.<\/li>\n\n\n\n
    • Spouse<\/strong>\n
        \n
      • loss of companionship\/protection + mental pain and suffering.<\/li>\n<\/ul>\n<\/li>\n\n\n\n
      • Children<\/strong>\n
          \n
        • Minor children can recover for lost parental companionship\/instruction\/guidance + mental pain and suffering<\/li>\n\n\n\n
        • All children can recover those damages only if there is no surviving spouse.<\/li>\n<\/ul>\n<\/li>\n\n\n\n
        • Parents<\/strong>\n
            \n
          • of a deceased minor child: mental pain and suffering<\/li>\n\n\n\n
          • of an adult child: mental pain and suffering only if there are no other survivors.<\/li>\n<\/ul>\n<\/li>\n\n\n\n
          • Medical\/funeral expenses paid by a survivor can be recovered by that survivor.<\/li>\n<\/ul>\n<\/details>\n\n\n\n
            B) Estate damages (typical)<\/strong><\/summary>\n
              \n
            • The personal representative may recover for the estate;\n
                \n
              • the decedent\u2019s lost earnings from injury to death (with offsets), and in some cases lost \u201cnet accumulations\u201d the decedent likely would have saved.<\/li>\n<\/ul>\n<\/li>\n\n\n\n
              • medical\/funeral expenses that became a charge against the estate (or were paid on the decedent\u2019s behalf).<\/li>\n\n\n\n
              • Estate awards are generally subject to creditor claims in probate.<\/strong><\/li>\n<\/ul>\n<\/details>\n\n\n\n
                \n\n\n\n

                A Key Florida-Specific Limitation<\/strong><\/p>\n\n\n\n

                If the injury results in death, Florida provides that the decedent\u2019s personal injury claim does not \u201csurvive\u201d as a separate case\u2014it abates, and the recovery is through wrongful death damages. This is why Florida wrongful death cases often do not include the decedent\u2019s own pain and suffering as a separate damage item.<\/p>\n\n\n\n

                \n\n\n\n

                Deadlines (Statute of Limitations)<\/strong><\/h2>\n\n\n\n

                General rule: wrongful death actions must be commenced within 2 years.<\/strong><\/p>\n\n\n\n

                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.<\/p>\n\n\n\n

                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.<\/p>\n\n\n\n

                \n\n\n\n

                Two Big \u201cspecial situation\u201d Buckets<\/strong><\/p>\n\n\n\n

                1) Medical Negligence (Medical Malpractice) Deaths<\/strong><\/summary>\n

                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. <\/p>\n\n\n\n

                Also, Florida has a major carve-out in \u00a7 768.21(8): for medical negligence claims, the statute says the mental pain\/suffering damages in subsections (3) and (4) are not recoverable by<\/p>\n\n\n\n

                  \n
                • adult children (for their deceased parent) <\/li>\n\n\n\n
                • parents of an adult child. <\/li>\n<\/ul>\n\n\n\n

                  This is the provision often called the \u201cfree kill\u201d 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. <\/p>\n\n\n\n

                  Separately, Florida\u2019s Supreme Court held unconstitutional (in a wrongful death medical malpractice context) a statutory cap on noneconomic damages under \u00a7 766.118<\/strong>.<\/p>\n<\/details>\n\n\n\n

                  2) Claims Against the State\/Cities\/Counties (Sovereign Immunity)<\/strong><\/summary>\n

                  If the defendant is a government entity, Florida\u2019s sovereign immunity waiver statute:<\/p>\n\n\n\n

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

                    <\/p>\n<\/details>\n\n\n\n

                    \n\n\n\n

                    Practical Process (How These Cases Usually Move)<\/strong><\/h2>\n\n\n\n
                      \n
                    1. Open the estate \/ appoint the personal representative (probate step), because that\u2019s who has standing to file.<\/li>\n\n\n\n
                    2. Investigate liability and causation (records, crash reports, product evidence, facility policies, witnesses, expert review as needed).<\/li>\n\n\n\n
                    3. File within deadlines and name\/identify all survivors in the complaint.<\/li>\n\n\n\n
                    4. Compute damages by category (each survivor\u2019s claim is different under the statute).<\/li>\n<\/ol>\n\n\n\n
                      <\/div>\n\n\n\n

                      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.<\/p><\/blockquote><\/figure>\n","protected":false},"excerpt":{"rendered":"

                      A wrongful death claim exists when a person\u2019s death is caused by another party\u2019s 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\u2019s \u201cpersonal…<\/p>\n","protected":false},"author":1,"featured_media":0,"parent":85,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"footnotes":""},"class_list":["post-164","page","type-page","status-publish","hentry"],"_links":{"self":[{"href":"https:\/\/bobetlaw.com\/index.php\/wp-json\/wp\/v2\/pages\/164","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/bobetlaw.com\/index.php\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/bobetlaw.com\/index.php\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/bobetlaw.com\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/bobetlaw.com\/index.php\/wp-json\/wp\/v2\/comments?post=164"}],"version-history":[{"count":16,"href":"https:\/\/bobetlaw.com\/index.php\/wp-json\/wp\/v2\/pages\/164\/revisions"}],"predecessor-version":[{"id":497,"href":"https:\/\/bobetlaw.com\/index.php\/wp-json\/wp\/v2\/pages\/164\/revisions\/497"}],"up":[{"embeddable":true,"href":"https:\/\/bobetlaw.com\/index.php\/wp-json\/wp\/v2\/pages\/85"}],"wp:attachment":[{"href":"https:\/\/bobetlaw.com\/index.php\/wp-json\/wp\/v2\/media?parent=164"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}