When a death is caused by negligence, Florida's Wrongful Death Act controls who recovers what. The framework is precise and the deadlines are short.
Call 904-383-7448Reviewed by Graham W. Syfert, Esq., Florida Bar No. 39104. Last updated .
The Florida Wrongful Death Act lives in sections 768.16 through 768.26, Florida Statutes. The Act creates a single cause of action by the personal representative of the decedent's estate, on behalf of survivors and the estate. Damages are categorized in section 768.21. The deadline is two years from the date of death under section 95.11(5)(e).
Survivors who may recover under the Act:
The estate separately recovers lost earnings of the decedent from injury to death, medical and funeral expenses, and (in some cases) lost net accumulations.
Only the personal representative of the decedent's estate may bring the wrongful death suit. Survivors do not sue in their own names. Probate of the estate must be opened. The personal representative is appointed by the probate court.
The lawyer who handles the personal injury / wrongful death suit often coordinates with a probate lawyer (or handles probate as well). For families that have no estate to administer apart from the wrongful death claim, summary administration may be available.
For wrongful death claims arising from medical negligence, certain survivors are statutorily excluded from recovering non-economic damages under section 768.21. The carve-out has been litigated repeatedly. The Florida Supreme Court struck down statutory caps on non-economic damages in malpractice cases (Estate of McCall, 134 So. 3d 894 (Fla. 2014); North Broward Hospital District v. Kalitan, 219 So. 3d 49 (Fla. 2017)), but the survivor-eligibility limits remain on the books.
This area moves. Confirm the current state of the law before counseling a family on a malpractice wrongful-death claim.
Wrongful death settlements typically allocate proceeds among survivors and the estate. The allocation matters for tax treatment and for lien repayment. Allocations involving minor survivors require court approval under chapter 744, Florida Statutes.
Liens come from multiple sources: medical providers, health insurance subrogation, Medicare conditional payments, Medicaid, ERISA plans. Negotiating liens down increases the family's net recovery.
Time matters at the start. Two years from death is the controlling deadline. Open probate as soon as practicable. Identify all survivors. Document each one's relationship and dependency.
Treat the case file like a survivor-by-survivor analysis. Each survivor's claim is independently valued. Settlement negotiation often turns on per-survivor categories rather than a global number.
For families that lost a primary earner, get an economist on board early. Lost net accumulations are often a meaningful portion of the recovery and require expert projection.
The personal representative of the decedent's estate, on behalf of survivors and the estate.
Two years from the date of death. Section 95.11(5)(e).
Only if there is no surviving spouse. Section 768.21(3).
Wrongful death cases need careful intake. Probate, survivor identification, allocation, lien negotiation. Call.
Call: 904-383-7448