Florida’s Wrongful Death Act (Fla. Stat. §§ 768.16–768.26) allows a family to recover damages when someone else’s negligence or wrongful act causes the death of a loved one. A personal representative brings the case on behalf of the estate and the family members Florida law recognizes as survivors. Family members can recover the financial support their loved one would have provided, while the right to recover for grief and the loss of companionship depends on the survivor’s relationship to the decedent, the ages involved, and whether the decedent left other survivors.
A family that loses a loved one to someone else’s carelessness has to make decisions about probate and which relatives have the right to recover, all while grieving. Florida’s statute answers each question, and the answers depend on each relative’s relationship to the decedent and the way the death happened.
Deaths the Florida Wrongful Death Act Covers
Florida’s Wrongful Death Act gives a family the right to bring a wrongful death case when the decedent could have brought an injury case against the responsible party if they had survived. Four kinds of conduct can support a wrongful death case:
- Negligence. Someone failed to use reasonable care by doing, or failing to do, something a reasonably careful person would or would not do in similar circumstances.
- Wrongful Act. Someone committed an unlawful act that caused the decedent’s death.
- Default. Someone did not carry out a specific obligation that a law or an agreement required of them, and the death resulted from that failure.
- Breach of Contract or Warranty. Someone broke the terms of a contract or sold a product that did not perform as its warranty promised.
A criminal case against the defendant does not replace the family’s wrongful death case. A defendant can face criminal prosecution for causing a death while the family pursues a separate wrongful death case in civil court.
Family Members Who Can Recover
Florida’s Wrongful Death Act limits recovery to the decedent’s estate and four groups of family members the Act defines as survivors.
- The decedent’s husband or wife
- The decedent’s biological and adopted children
- The decedent’s mother and father
- Blood relatives and adoptive brothers and sisters who relied on the decedent for support or services at the time of death
When an unmarried father dies, his child counts as a survivor only if the father had recognized a responsibility for the child’s support. An unmarried partner does not count as a survivor, and neither does a brother, sister, or grandparent who did not rely on the decedent for support or services. A relative who is not a survivor under the Wrongful Death Act can still inherit what the decedent’s will leaves them, but the relative cannot recover damages for their own losses in the wrongful death case.
Damages Each Survivor Can Recover
Florida’s Wrongful Death Act sets out the damages each survivor can recover, and the amount available to each family member depends on their relationship to the decedent and, for children and parents, the age of the child.
| Survivor | Damages | Limits |
| Spouse | Lost support and services, loss of companionship and protection, and mental pain and suffering | None |
| Children under 25 | Lost support and services, loss of parental companionship, instruction, and guidance, and mental pain and suffering | None |
| Children 25 and older | Lost support and services | Companionship and pain and suffering damages only when the decedent left no spouse, and none in a medical malpractice death |
| Parents of a child under 25 | Mental pain and suffering, and lost support and services the child provided | None |
| Parents of a child 25 or older | Lost support and services the child provided | Pain and suffering damages only when the decedent left no other survivors, and none in a medical malpractice death |
| Dependent relatives | Lost support and services | None |
| Any survivor who paid medical or funeral bills | Medical and funeral expenses the survivor paid | None |
Lost support is the money and in-kind contributions each survivor would have received from the decedent if the decedent had lived. A spouse who relied on the decedent’s paycheck for the mortgage and groceries, for example, can recover the share of the decedent’s future income that would have gone to the household. A survivor can recover lost support from the date of the injury through the years the decedent would have kept providing it, based on the life expectancies of the decedent and the survivor.
Lost services covers childcare, cooking, cleaning, yard work, home repairs, and other household tasks the decedent regularly performed, and the amount depends on what the family will pay to hire someone else to perform the work. When a parent who stayed home with the children dies, the family can recover what it will cost to pay someone for the childcare and housework the parent did, even though the parent earned no paycheck. The family receives future support and services as one payment today, so the award is reduced by the interest the family can earn by investing the payment.
Damages the Estate Recovers
Survivor damages compensate each family member for what they personally lost because of the death, whereas estate damages compensate for financial losses that belonged to the decedent and pass through the estate to the heirs after creditors are paid. The probate court appoints a personal representative to bring one wrongful death case on behalf of the survivors and the estate. The court gives preference to the executor named in the will, and the representative does not have to be a survivor to bring the case. The decedent’s estate can recover:
- Lost Earnings. The wages the decedent lost between the day of the injury and the day of death, minus the share of the wages that went to survivors as lost support.
- Net Accumulations. The savings the decedent would likely have built up and left behind over a normal life expectancy, after taxes and the money the decedent would have spent on themselves and their family. The estate can recover net accumulations when the decedent left a spouse, child, or grandchild, or when a decedent 25 or older left a surviving parent and no survivor can recover lost support.
- Medical and Funeral Expenses. Medical and funeral bills the decedent paid or that became a debt of the estate, when no survivor paid them.
Creditors can collect from the estate’s recovery through probate.
Limits on a Florida Wrongful Death Recovery
Florida does not cap the damages a family can recover for its losses in a wrongful death case, but three rules can limit the amount a family ultimately recovers.
Medical Malpractice and Adult Children
Florida’s Wrongful Death Act limits the damages some family members can recover when medical malpractice causes a death, a restriction known as Florida’s “Free Kill” law. When the decedent was 25 or older, the decedent’s parents cannot recover for their mental pain and suffering. Children who are 25 or older cannot recover for their mental pain and suffering or the loss of their parent’s companionship.
Adult children and parents can still recover lost support and services and any medical or funeral expenses they paid.
Government Defendants
Florida’s sovereign immunity statute generally limits what a family can collect from the State of Florida, a county, a city, or a public agency to $200,000 per person and $300,000 per incident. When a jury awards more than the limit, payment of the excess generally requires a claims bill from the Florida Legislature, although a government entity may pay more from available insurance coverage in certain circumstances. Government defendants also do not pay punitive damages or interest on the award for the time before the verdict.
A family bringing a wrongful death case against a government agency has to give written notice within two years, before filing suit. The notice goes to the agency, and a case against any government entity other than a city, a county, or the Florida Space Authority requires notice to the Florida Department of Financial Services as well.
The Decedent’s Share of Fault
Florida’s comparative fault statute reduces the recovery by the decedent’s percentage of fault, and the family cannot recover any damages when the decedent was more than 50 percent at fault. Medical malpractice deaths are an exception to the 50 percent rule. For example, if a jury finds a patient who skipped a follow-up appointment 60 percent at fault and the surgeon 40 percent at fault, the family still recovers 40 percent of its damages.
When a survivor shares fault for the death, the wrongdoer can raise defenses that reduce or bar the at-fault survivor’s own recovery, and the defenses do not affect what any other survivor recovers. If a husband was driving and a jury finds him 30 percent at fault for the crash that killed his wife, the husband’s damages drop by 30 percent, and the children recover their damages in full.
Filing Deadline for a Florida Wrongful Death Case
Florida’s wrongful death statute of limitations gives the personal representative two years from the date of death to file the case. Florida law sets a different deadline for two kinds of wrongful death cases.
- Medical Malpractice. A family generally has to bring a wrongful death case based on medical malpractice within two years of the malpractice or the date the malpractice was discovered or reasonably should have been discovered with due diligence. Florida also generally imposes a four-year deadline measured from the malpractice itself, although the statute provides exceptions in certain circumstances.
- Murder or Manslaughter. Florida law sets no deadline for a wrongful death case against the individual whose intentional act caused the death and amounts to murder or manslaughter. The family can bring the case whether or not the individual was arrested, charged, or convicted.
Dividing a Florida Wrongful Death Recovery
When a wrongful death case goes to trial, the jury awards damages to each survivor and to the estate individually, and the verdict lists the dollar amount each one receives. When the case settles, the settlement sets how the money is divided between the survivors and the estate. While the case is pending in court, a judge has to approve the division if one or more survivors dispute it or a survivor is a minor or incapacitated.
Each survivor receives the damages for their own losses directly, and the estate’s damages go through probate, where creditors are paid first and the rest passes to the beneficiaries named in the will, or to the heirs Florida law designates when there is no will. Attorney fees and case costs are generally split across each survivor’s award and the estate’s award in proportion to the size of each award, although an expense incurred specifically for one survivor or the estate is charged only against the award for the survivor or estate it benefited.
Lesser, Landy, Smith & Siegel Holds Wrongdoers Accountable
Lesser, Landy, Smith & Siegel has represented Florida families for nearly a century, and our wrongful death lawyers can pursue every party responsible for a loved one’s death and every insurance policy that covers the loss. Our lawyers can document each survivor’s damages and the estate’s damages and take the case to a jury when the insurance company refuses to pay the full value of the family’s losses.
Lesser, Landy, Smith & Siegel offers a free consultation to any Florida family considering a wrongful death case. Our firm charges no fee unless we win the case.
