Who recovers what when a death is caused by negligence in Florida. Survivors, the estate, and the gaps that catch families by surprise.
Call 904-383-7448Reviewed by Graham W. Syfert, Esq., Florida Bar No. 39104. Last updated .
Section 768.21, Florida Statutes, sets out the damages recoverable under the Florida Wrongful Death Act, sections 768.16 through 768.26. The Act creates two categories of recovery: damages to "survivors" (surviving spouse, minor children, certain adult children, parents in narrow cases, and other dependents) and damages to the estate. Read the full statute at syfert.com.
Loss of the decedent's companionship and protection, plus mental pain and suffering from the date of injury.
Loss of parental companionship, instruction, and guidance, and mental pain and suffering. Adult children may also recover under (3) only if there is no surviving spouse.
Mental pain and suffering. Parents of an adult child may also recover under narrow circumstances when there is no other survivor.
Each survivor may recover the value of lost support and services from the date of the decedent's injury, with interest.
The estate may recover (a) lost earnings of the decedent from the date of injury to death (less personal expenses), (b) lost net accumulations where the decedent had earning capacity that survived death, and (c) medical and funeral expenses paid by the estate.
Net accumulations are what the decedent would have saved (not earned) over the decedent's working life, projected and reduced to present value. The calculation requires economic-expert testimony in most cases.
For wrongful death claims arising from medical negligence, certain survivors are statutorily barred from recovering non-economic damages. The carve-out has been the subject of constitutional litigation. Florida Supreme Court decisions in McCall and North Broward Hospital District v. Kalitan (2017) struck down statutory caps on non-economic damages in malpractice cases, but the survivor-eligibility limits in section 768.21 remain on the books and continue to generate litigation.
This area moves. Confirm the current state of the carve-out before counseling a family on a malpractice wrongful-death claim.
The personal injury claim merges into the wrongful death claim on death. The wrongful death deadline (two years from death under section 95.11(5)(e)) is what controls. Personal representatives sue on behalf of survivors and the estate.
Wrongful death cases live and die on the survivor identification and proof. Get the family tree right early. Document each survivor's relationship and dependency. Estate representation requires a personal representative; coordinate with the probate lawyer.
Settlement allocation among survivors and the estate matters for tax and lien purposes. Allocations are subject to court approval where minors are involved.
Surviving spouse, minor children (and adult children of a parent who left no spouse), parents in narrow cases, and certain other dependents.
Only if there is no surviving spouse. Section 768.21(3).
Lost earnings from injury to death, medical and funeral expenses, and lost net accumulations where applicable. Section 768.21(6).
Wrongful death cases need careful intake. Survivor identification, allocation, lien negotiation. Call.
Call: 904-383-7448