When someone dies because of another's negligence or wrongful act, Florida law allows certain family members and the deceased's estate to seek compensation through a wrongful death claim. These claims are governed by the Florida Wrongful Death Act (Fla. Stat. §§ 768.16–768.26), which sets out who may bring the claim, who can recover, and what damages are available. This guide walks through those rules.
This is general information, not legal advice. Wrongful death law is procedurally complex and emotionally difficult, so confirm specifics with a licensed Florida attorney.
What a wrongful death claim is
A wrongful death claim arises when a person dies as a result of the wrongful act, negligence, default, or breach of contract of another (Fla. Stat. § 768.19). Common causes include fatal car crashes, medical malpractice, defective products, and dangerous premises. The claim exists to compensate the family and estate for losses caused by the death — it is separate from any criminal case the state may bring.
Who brings the claim: the personal representative
Under Florida's Act, a wrongful death action is brought by the personal representative of the deceased's estate (Fla. Stat. § 768.20) — not directly by individual family members. The personal representative is typically named in the deceased's will or appointed by the probate court. The personal representative files a single lawsuit on behalf of all eligible survivors and the estate, and any recovery is then distributed according to the statute. This consolidated structure avoids multiple competing lawsuits.
The personal representative's role carries real responsibility. Under Fla. Stat. § 768.20, the representative must identify every survivor who may have an interest in the recovery and name them in the complaint, because each survivor's individual losses are pleaded and proved as part of the single action. The representative also makes key litigation decisions — whether to settle, on what terms, and how to propose allocating any recovery — subject to the survivors' interests and, where required, court approval. If there is no will naming a representative, or the named representative is unable to serve, the probate court appoints one, which is why opening a probate estate is often the first practical step after a wrongful death. Because the representative acts for everyone, choosing someone who can act fairly among potentially competing survivors matters a great deal.
How wrongful death differs from a survival action
It helps to distinguish two ideas. A wrongful death claim compensates the survivors and estate for losses caused by the death itself. Some states also allow a separate "survival action" for the pain and suffering the deceased experienced before dying. In Florida, the Wrongful Death Act consolidates the claim and does not permit recovery for the decedent's own pre-death pain and suffering as a separate item — the focus is on the survivors' losses and the estate's economic losses. Understanding this structure helps set realistic expectations about what can and cannot be recovered.
Who can recover as a survivor
The Act defines survivors who may recover (Fla. Stat. § 768.18). They include:
• The deceased's spouse;
• Children (minor children always; adult children in many circumstances);
• Parents (especially of a deceased minor child); and
• Certain blood relatives and adoptive siblings who were partly or wholly dependent on the deceased for support or services.
The specific damages each survivor can claim depend on their relationship to the deceased. These categories are defined narrowly, and disputes over who qualifies are common.
Two definitions in § 768.18 deserve emphasis. A minor child means a child under 25 for purposes of recovering certain damages, which is broader than the usual age of majority and lets some adult children recover where they otherwise could not. And a dependent blood relative or adoptive sibling qualifies as a survivor only if they were actually dependent on the deceased for support or services — a factual question that often requires proof of financial reliance. Because the statute draws these lines precisely, two people in seemingly similar family situations can end up with very different rights to recover, which is why early analysis of who qualifies is so important.
Damages survivors and the estate can recover
Florida separates wrongful death damages into those recoverable by survivors and those recoverable by the estate (Fla. Stat. § 768.21):
Survivors may recover lost support and services, loss of companionship and protection, and their own mental pain and suffering. A surviving spouse and minor children may recover for lost companionship and guidance and for mental anguish; parents of a deceased minor child may recover for their mental pain and suffering.
The estate may recover lost net accumulations (the earnings the deceased likely would have saved), lost earnings from the date of injury to death, and medical and funeral expenses paid by the estate.
It is worth unpacking the specific categories in § 768.21, because they determine who recovers what. Lost support and services compensates survivors for the financial contributions and household services the deceased provided. Loss of companionship, protection, and guidance recognizes the relational loss to a spouse and children. Mental pain and suffering is available to a spouse, to minor children (and, where there is no surviving spouse, to all children), and to parents of a deceased minor child. Medical and funeral expenses may be recovered by whoever paid them — a survivor who paid the bills personally or the estate. And lost net accumulations — the savings the deceased would likely have built and left behind — belongs to the estate and is often the largest economic component in the death of a wage earner. Because each category is tied to a particular survivor or to the estate, valuing a wrongful death case requires mapping each loss to the right claimant.
The deadline to file
A Florida wrongful death claim must generally be filed within two years of the date of death (Fla. Stat. § 95.11(4)(d)). This two-year clock runs from the date of death rather than the date of the underlying injury, which can matter when a person is injured and dies sometime later. When the death results from medical malpractice, the chapter 766 pre-suit requirements and the two-year limit with a four-year statute of repose may also apply. Claims against government entities require pre-suit notice under Fla. Stat. § 768.28. Because opening a probate estate and appointing a personal representative takes time, families should not wait until the deadline is near to consult counsel. See our statute of limitations guide for timing details.
How recovery is distributed
Because a single action is brought by the personal representative, any settlement or judgment must be allocated among the survivors and the estate. The personal representative, working with counsel, proposes how the recovery is divided based on each survivor's losses, and the probate court typically must approve the allocation — particularly when minors or competing interests are involved. This court oversight protects survivors and ensures the distribution reflects the statute. Disagreements among family members about the split are not uncommon, which is one reason these cases benefit from experienced counsel and clear documentation of each survivor's relationship and losses.
Proving the economic value of a life
One of the more demanding parts of a wrongful death case is quantifying losses that are, by their nature, difficult to measure. The estate's claim for lost net accumulations typically requires an economist to project what the deceased would have earned over a working lifetime, subtract personal consumption and taxes, and estimate what would realistically have been saved and left to heirs. The survivors' claims for lost support and services may draw on evidence of the deceased's income, the financial help they provided, and the value of household work — childcare, home maintenance, caregiving — that the family must now replace. Vocational experts, accountants, and life-care planners frequently contribute to these calculations.
The non-economic losses — loss of companionship, guidance, and the survivors' mental pain and suffering — cannot be reduced to a spreadsheet and are instead proved through testimony about the relationship and its loss. Juries are asked to translate that human loss into a dollar figure, which makes the survivors' own accounts, and corroboration from those who knew the family, central to the case. Documenting the deceased's role in the family early — financially and relationally — gives counsel the raw material to present these losses fully and credibly.
The "free death" gap and other limits
Florida's Wrongful Death Act has notable limits. Historically, a much-criticized provision barred adult children from recovering for the loss of a parent — and parents from recovering for the loss of an adult child — in medical-malpractice cases specifically, a gap critics call the "free death" rule because it can leave a negligent provider with no wrongful-death exposure for those survivors. Legislative changes to this provision have been debated, so the current state of the law should be confirmed. More generally, claims against government entities are subject to sovereign-immunity damage caps under Fla. Stat. § 768.28, which can limit recovery regardless of the actual losses. These limits make it important to understand exactly which survivors qualify and what each can claim under the facts.
Comparative fault and the deceased's own conduct
A wrongful death recovery can be reduced — or in some cases barred — if the person who died shared responsibility for the fatal incident. Florida's modified comparative negligence rule (Fla. Stat. § 768.81) generally applies, so if the deceased was found partly at fault, the survivors' and estate's damages are reduced by that percentage. Under the 2023 changes, a finding that the deceased was more than 50% at fault can bar recovery entirely in an ordinary negligence case, though that hard cutoff does not apply to medical-malpractice actions. This is why the defense in a fatal car crash, for example, will often argue that the deceased driver contributed to the collision. Building a clear record of how the incident actually happened protects the survivors' recovery just as it would in any injury case. See our comparative negligence guide.
Wrongful death from malpractice or a crash
Many wrongful death claims grow out of other personal injury contexts. A fatal car crash invokes Florida's no-fault rules, comparative fault, and the at-fault driver's liability coverage. A death from medical negligence triggers the chapter 766 pre-suit investigation and notice process — see our medical malpractice guide. In all cases, Florida's modified comparative negligence rule (Fla. Stat. § 768.81) can reduce or bar recovery if the deceased shared fault.
Frequently asked questions
Who can file a wrongful death lawsuit in Florida?
Only the personal representative of the deceased's estate files the lawsuit (Fla. Stat. § 768.20), but it is brought on behalf of the statutory survivors and the estate. Individual family members do not file separate suits.
Who counts as a survivor entitled to recover?
The spouse, children, parents, and certain dependent blood relatives or adoptive siblings, as defined in Fla. Stat. § 768.18. The damages available depend on each survivor's relationship to the deceased.
What can the family recover?
Survivors may recover lost support and services, loss of companionship, and their own mental pain and suffering; the estate may recover lost net accumulations, lost earnings, and medical and funeral expenses (Fla. Stat. § 768.21).
Can the deceased's own fault reduce the recovery?
Yes. Under Florida's modified comparative negligence rule (Fla. Stat. § 768.81), the recovery is reduced by the deceased's share of fault, and in an ordinary negligence case being more than 50% at fault can bar recovery entirely — though that cutoff does not apply to medical-malpractice deaths.
How long do we have to file?
Generally two years from the date of death (Fla. Stat. § 95.11(4)(d)). Medical-malpractice and government-entity deaths involve additional pre-suit requirements, so consult an attorney promptly.
Find a Florida personal injury attorney
Wrongful death claims are among the most procedurally and emotionally demanding cases in Florida law. For the broader picture, see our complete personal injury guide and our medical malpractice guide. If you have lost a loved one because of someone else's wrongful conduct, consider speaking with a licensed Florida personal injury attorney. Most offer free, confidential consultations and work on contingency.