Quick Answer: Who can file a wrongful death claim in Florida?
In Florida, a wrongful death claim is generally filed by the personal representative of the deceased person's estate, not by a surviving spouse, child, or parent in their own name. The personal representative files the lawsuit on behalf of the estate and the survivors recognized by Florida's Wrongful Death Act. In most cases, the deadline to file is two years from the date of death, but limited statutory exceptions may apply.
Florida wrongful death law does not allow a surviving spouse, parent, or child to file the lawsuit in their own name. Only the personal representative of the deceased person's estate has standing to bring a Florida wrongful death claim.
That procedural requirement surprises many families, because the person filing the lawsuit may not be the same person who suffered the greatest loss.
If someone you love died because of another person's negligence in Coral Springs or anywhere in South Florida, talking to an attorney early protects the two-year filing deadline and starts the process of appointing a personal representative.
SCHEDULE A CONSULTATIONKey Takeaways About Filing a Florida Wrongful Death Claim
- In most Florida wrongful death cases, only the personal representative of the estate may file the lawsuit.
- The Florida Wrongful Death Act defines which family members qualify as survivors and what damages each survivor may recover.
- Florida generally gives wrongful death claims a two-year filing deadline measured from the date of death.
- The damages available to each survivor depend on the survivor's relationship to the deceased person and the type of claim.
What Does a Personal Representative Do in a Florida Wrongful Death Case?
The personal representative is the only person with legal authority to file a wrongful death lawsuit in Florida. This person acts on behalf of both the estate and all surviving family members who qualify as survivors under the statute.
How the Personal Representative Gets Appointed
If the deceased person had a will, the will typically names a personal representative. If there is no will, a Florida probate court appoints one.
If the deceased person lived in the Coral Springs area, the probate appointment typically goes through the Broward County probate court, as Florida assigns probate jurisdiction based on the decedent's county of residence.
The appointment process takes time, which is why starting it early matters. The two-year filing deadline runs from the date of death, not the date of appointment.
A family that waits 18 months to begin probate proceedings may be rushed in filing a wrongful death lawsuit before the statute of limitation tolls.
Who Typically Serves as Personal Representative
Florida probate law sets the order of preference for appointment. The surviving spouse typically has priority under probate rules, followed by other family members.
If there is no surviving spouse, or the spouse declines, an adult child or another person the court finds qualified may serve. This preference comes from Florida's probate code, not the wrongful death statute itself.
An attorney who handles wrongful death cases in the Coral Springs area guides the family through the probate appointment process and makes sure the personal representative is in place before the statute of limitations runs.
Which Family Members Qualify as Survivors Under Florida's Wrongful Death Act?
The Florida Wrongful Death Act defines survivors as the deceased person's spouse, children, parents, and certain dependent relatives. Florida Statute § 768.18 sets out the specific definitions.
Survivors Who May Recover Damages
The following family members qualify as survivors under the statute and may recover damages through a Florida wrongful death claim:
- The surviving spouse of the deceased person
- Minor children of the deceased person (under 25 years old as defined by the statute)
- Adult children of the deceased person, though their recoverable damages vary depending on whether a surviving spouse exists and whether the claim involves medical negligence
- Parents of the deceased person, including adoptive parents, with damages varying depending on whether the deceased was a minor or adult child
- Blood relatives and adoptive brothers and sisters who were partly or wholly dependent on the deceased person for support or services
Each survivor's relationship to the deceased person determines which categories of damages they may recover. The statute assigns different damage types to different family members, and the presence or absence of a surviving spouse changes what other survivors may claim.
What Damages Does § 768.21 Assign to Each Survivor?
The Florida Wrongful Death Act assigns specific damage categories to each type of survivor. The categories differ substantially depending on the relationship, whether a surviving spouse exists, and whether the claim arises from medical negligence.
Damages Available to the Surviving Spouse
The surviving spouse has the broadest access to damages under § 768.21. A surviving spouse may recover lost support and services, loss of the decedent's companionship and protection, and mental pain and suffering.
A surviving spouse who personally paid medical or funeral expenses may also recover those costs directly under § 768.21(5).
Damages Available to Minor Children
Minor children (under 25 as defined by the statute) may recover lost support and services, lost parental companionship, instruction, and guidance, and mental pain and suffering.
A minor child who personally paid medical or funeral expenses may recover those costs under § 768.21(5).
Damages Available to Adult Children
Adult children may recover lost support and services under § 768.21(1) in all cases. Their ability to recover additional damages under § 768.21(3), including lost parental companionship, instruction, and guidance, as well as mental pain and suffering, depends on two factors.
The first factor is whether there is a surviving spouse. Under § 768.21(3), all children of the deceased person may recover these damages if there is no surviving spouse. If a surviving spouse exists, only minor children may recover them.
The second factor is whether the claim arises from medical negligence. Under § 768.21(8), adult children may not recover damages under § 768.21(3) in a medical negligence claim as defined by § 766.106(1), even if there is no surviving spouse.
An adult child who personally paid medical or funeral expenses may still recover those costs under § 768.21(5).
Damages Available to Parents
The statute treats parents of a minor child differently from parents of an adult child.
Parents of a deceased minor child may recover lost support and services under § 768.21(1) and mental pain and suffering under § 768.21(4). The statute does not restrict § 768.21(4) damages for parents of a minor child based on the existence of other survivors.
Parents of a deceased adult child may recover lost support and services under § 768.21(1). They may recover mental pain and suffering under § 768.21(4) only if there are no other survivors.
While unfortunate, under § 768.21(8), parents of an adult child may not recover § 768.21(4) damages in claims arising from medical negligence as defined by § 766.106(1). Florida's "Free Kill" law—§ 768.21(8)—is a unique rule that bars adult children (25 or older) and parents of adult children from recovering non-economic damages (mental pain and suffering) if the wrongful death was caused strictly by medical malpractice. Hence, if an unmarried adult over the age of 25 with no minor children dies as a result of medical malpractice, there is zero liability for the medical provider for the family's grief and emotional trauma. This "Free Kill" law only applies to medical malpractice cases and does not apply to other personal injury cases such as auto collisions, and other personal injury incidents.
Parents do not recover loss of companionship under the statute. The damages available to parents are narrower than what many families expect. A parent who personally paid medical or funeral expenses may recover those costs under § 768.21(5).
Medical and Funeral Expenses
Two separate subsections address medical and funeral expenses. Under § 768.21(5), a survivor who personally paid medical or funeral expenses may recover those costs directly.
Under § 768.21(6)(b), the personal representative may recover medical or funeral expenses that became a charge against the estate or were paid by or on behalf of the decedent. The statute excludes amounts already recoverable under § 768.21(5) to prevent duplicate recovery.
Estate-Level Damages
The personal representative may recover additional damages on behalf of the estate under § 768.21(6). These include the deceased person's lost earnings from the date of injury to the date of death, and loss of prospective net accumulations reduced to present value.
Net accumulations are recoverable if the decedent's survivors include a surviving spouse or lineal descendants, or under certain circumstances if there is a surviving parent and no lost support and services recoverable under § 768.21(1).
SCHEDULE A CONSULTATIONHow Long Do You Have to File a Florida Wrongful Death Claim?
Florida generally allows two years to file a wrongful death lawsuit, and the clock usually starts on the date of death rather than the date of the accident. In most cases, missing that deadline will bar the claim.
However, some wrongful death claims involving intentional conduct may fall within a statutory exception, so the deadline should not be stated as absolute in every case.
Why the Timeline Is Tighter Than It Appears
Two years sounds like enough time, but several steps must happen before the lawsuit is filed. The table below shows a general outline of how the two-year window gets consumed.
| Milestone | Approximate Timeline | What Happens |
|---|---|---|
| Retain an attorney | Weeks 1-2 after the death | Attorney reviews the facts, identifies survivors, and begins the probate process for personal representative appointment |
| Probate appointment | Weeks 2-12 (varies by county and circumstances) | The court appoints the personal representative, who then has legal standing to file the wrongful death lawsuit |
| Evidence gathering | Weeks 1-2 | Attorney obtains the police report, medical records, accident reconstruction, witness statements, and employment/income records |
| Damages calculation | Anytime thereafter | Lost support, lost net accumulations, and each survivor's individual damages are documented and calculated |
| Demand and negotiation | Anytime thereafter | Attorney sends a demand to the at-fault party's insurer and negotiates toward resolution |
| Filing deadline | Month 24 (two years from the date of death) | The wrongful death lawsuit must be filed before this date or the claim is permanently barred |
Each milestone depends on the one before it. A delayed probate appointment compresses every step that follows.
Starting the process within the first few weeks after the death gives the attorney the most room to build the strongest possible claim.
What Happens If the Deadline Passes
Missing the two-year filing deadline generally bars the wrongful death claim permanently. Florida courts apply this deadline strictly. The loss of the right to file does not just affect one survivor. It eliminates the claim for the estate and every qualifying survivor.
How Does Fault Affect a Florida Wrongful Death Claim?
Florida's comparative fault rules apply to wrongful death claims. If the deceased person was partly at fault, the survivors' recovery is reduced by that percentage.
In negligence cases, if the decedent was more than 50% at fault, recovery is generally barred pursuant to HB837. The HB837 modified comparative fault law does not apply to medical malpractice cases.
How the Insurance Company Raises Comparative Fault
The at-fault party's insurer may argue that the deceased person contributed to their own death. Common arguments in wrongful death cases include:
- The deceased person was speeding or failed to yield at an intersection
- The deceased person was not wearing a seatbelt or motorcycle helmet
- The deceased person was distracted or impaired at the time of the incident
Each argument is meant to show the deceased person was more than 50% at fault. A wrongful death attorney builds the factual record to counter these defenses with accident reconstruction, witness testimony, and the physical evidence from the scene.
FAQs for Florida Wrongful Death Claims
My spouse died in a car accident in Coral Springs. Do I file the wrongful death lawsuit myself?
No. Florida law requires the personal representative of your spouse's estate to file the lawsuit, not you directly. If the will names you as personal representative, the probate court confirms your appointment.
If there is no will, you may petition the Broward County probate court for appointment. An attorney handles this process and files the wrongful death claim on behalf of you and the estate.
My parent died and I am over 25. Do I still have a claim?
Yes, but your recoverable damages depend on two factors. Adult children may recover lost support and services in all cases.
Under § 768.21(3), adult children may also recover lost parental companionship, instruction, and guidance along with mental pain and suffering, but only if there is no surviving spouse.
In medical negligence cases, adult children may not recover § 768.21(3) damages regardless of whether a surviving spouse exists.
How much does it cost to hire a wrongful death attorney?
Cindy Goldstein Law handles wrongful death cases on a contingency fee basis. You pay no attorney fees or costs unless the firm recovers compensation. Consultations are always free.
Do I need to open probate before filing a wrongful death lawsuit in Florida?
Generally, yes. A personal representative must be appointed before the wrongful death lawsuit is filed. Starting the probate process early helps protect the filing deadline and avoids delays in getting the right person in place to bring the claim.
An attorney who handles wrongful death cases in the Coral Springs area coordinates the probate appointment alongside the injury claim.
Does comparative fault apply to wrongful death cases in Florida?
Yes. Florida's comparative negligence system applies to wrongful death claims. If the deceased person shared fault, the recovery for all survivors is reduced proportionally.
If the deceased person's fault exceeds 50%, recovery is generally barred under HB 837. Wrongful death claims arising from medical negligence under Chapter 766 are not subject to that bar.
What if the at-fault person also died in the accident?
Under Florida Statute § 768.20, the wrongdoer's personal representative serves as the defendant if the wrongdoer dies before or during the lawsuit. The claim proceeds against the wrongdoer's personal representative, not against the estate as a general entity.
What happens to a pending personal injury lawsuit if the injured person dies?
Under Florida Statute § 768.20, a personal injury action abates when the injured person dies from those injuries, and any pending personal injury lawsuit at the time of death also abates.
The Florida Wrongful Death Act then provides the exclusive remedy for the surviving family members. The personal injury claim does not continue alongside the wrongful death claim.
Protect Your Family's Florida Wrongful Death Claim Before the Deadline Closes
The two-year statute of limitations on a Florida wrongful death claim runs from the date of death, and the probate process required to appoint a personal representative takes time before the lawsuit is even filed. Every month that passes without starting that process is a month the window gets tighter.
Cindy Goldstein Law has handled wrongful death claims for families in Coral Springs and the Parkland community for more than two decades.
We walk you through the personal representative appointment, identify every qualifying survivor, and build the claim against the responsible party while the evidence is still available. Call (954) 346-5420 to talk through your family's situation.