If someone you love died because another person was careless, you are carrying a grief no statute can fix. This page is for you. It explains, in plain words, who in your family can recover and why the clock matters. When you are ready, call and we will talk it through.
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).
You are grieving, and the practical steps feel cold against that. They still matter, because they protect your family's claim while you mourn. Take them when you can.
Take care of yourself and the family first. Lean on the people around you, and do not carry the legal weight alone. Gather and keep every document that lands in your hands, the death certificate, hospital and police records, the accident report, anything an insurer or a company mails you. Write down the names and phone numbers of anyone who saw what happened, because memories fade and witnesses move away. If there is a scene or a vehicle or a product involved, photograph it, and do not let anyone repair, discard, or alter it. If an insurance adjuster calls, you do not have to give a recorded statement, and it is fine to say you will call back after you have spoken with a lawyer. Then call me at 904-383-7448 before the two-year deadline runs, because once it passes the claim is gone, and the sooner we start the more we can preserve.
Wrongful death cases need careful intake. Probate, survivor identification, allocation, lien negotiation. Call.
Call: 904-383-7448