An earlier guide on this site covered Florida car accident injury claims — the two-year filing deadline, the 51% fault rule, negligence law generally. That guide is written for the person who was hurt. Florida has a separate body of law, the Wrongful Death Act, for what happens when the person wasn’t just hurt but didn’t survive. The rules are meaningfully different: who can sue, who they’re suing on behalf of, and what kinds of damages the law actually recognizes are all governed by a specific set of statutes most general negligence content doesn’t cover at all.
The Basic Right of Action
Florida’s wrongful death statute doesn’t create a brand-new type of claim so much as it preserves an existing one that would otherwise disappear at death. F.S. 768.19 states that when a death is “caused by the wrongful act, negligence, default, or breach of contract or warranty of any person,” and the underlying event “would have entitled the person injured to maintain an action and recover damages if death had not ensued,” the party who would have been liable “shall be liable for damages as specified in this act notwithstanding the death of the person injured” — even if the death occurred under circumstances that would also constitute a felony. In plain terms: if the deceased person could have sued for their injuries had they lived, that right doesn’t just vanish because they died: it converts into a wrongful death claim, brought by someone else, on behalf of a defined group of people.
Only the Personal Representative Can Bring the Claim
This is one of the most consistently misunderstood parts of Florida wrongful death law. Family members don’t sue individually. Under F.S. 768.20, “the action shall be brought by the decedent’s personal representative,” who then recovers “for the benefit of the decedent’s survivors and estate all damages, as specified in this act, caused by the injury resulting in death.” The personal representative is a specific legal role — usually named in a will or appointed by the probate court — acting as a single plaintiff on behalf of everyone entitled to recover, rather than each survivor filing separately. The statute also closes off a different route: if the decedent had a pending personal injury lawsuit for the same injury at the time of death, that lawsuit doesn’t survive as a separate case — it abates, and the wrongful death claim takes its place.
Who Counts as a “Survivor” — and Why That Word Does a Lot of Work
The statute uses “survivor” in a specific, defined sense, not as a general reference to grieving family. Under F.S. 768.18(1), “survivors” means “the decedent’s spouse, children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters.” It includes a mother’s child born outside marriage, but a father’s child born outside marriage only if the father had legally recognized responsibility for supporting that child. Separately, F.S. 768.18(2) defines “minor children” for purposes of this statute as children under 25 — not 18 — which matters because it expands who can recover certain categories of damages tied to a parent-child relationship.
What Damages Are Actually Recoverable
F.S. 768.21 lays out several distinct, separately calculated categories of damages, and not every survivor qualifies for every category:
- Lost support and services (subsection 1): Every survivor can recover the value of support and services lost from the date of injury forward, including future losses reduced to present value, based on the survivor’s relationship to the decedent and the decedent’s probable income.
- Companionship and mental pain and suffering for a surviving spouse (subsection 2): A surviving spouse can additionally recover for “loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury.”
- Lost parental companionship for children (subsection 3): Minor children (and all children, if there’s no surviving spouse) can recover for “lost parental companionship, instruction, and guidance” and mental pain and suffering.
- Mental pain and suffering for parents (subsection 4): Each parent of a deceased minor child can recover for mental pain and suffering; a parent of an adult child can too, but only if there are no other survivors.
- Medical and funeral expenses (subsection 5): Recoverable by any survivor who actually paid them.
- Estate damages (subsection 6): The personal representative can separately recover lost earnings between injury and death, and — in certain circumstances tied to whether there’s a surviving spouse, lineal descendants, or (for a non-minor decedent) a surviving parent — the “prospective net accumulations” the estate would have received but for the death.
There’s a notable statutory limitation buried in subsection 8: for claims specifically arising from medical negligence, adult children can’t recover the companionship damages available under subsection 3, and parents of an adult child can’t recover the mental pain and suffering damages available under subsection 4. That carve-out doesn’t apply to wrongful death claims arising from other causes, like a car accident or a workplace incident — it’s specific to medical malpractice cases.
The Filing Deadline
Wrongful death claims have their own limitations period, separate from the two-year deadline that applies to a living injury victim’s ordinary negligence claim. Both happen to be two years, but they’re set by different provisions: F.S. 95.11(5)(a) covers “an action founded on negligence” generally, while F.S. 95.11(5)(e) separately lists “an action for wrongful death” — meaning wrongful death has its own express two-year clock rather than simply falling under the general negligence deadline by default. That two-year period generally runs from the date of death, not the date of the original injury, which matters in cases where a person is injured, survives for a period of time, and later dies from complications related to that injury.
So, Who Actually Recovers What?
Putting the pieces together: a wrongful death claim in Florida is filed by one person (the personal representative) on behalf of a legally defined group (survivors, plus the estate), within two years of the death, seeking categories of damages that depend on each survivor’s specific relationship to the decedent — a spouse’s damages aren’t the same as a parent’s, and a minor child’s aren’t the same as an adult child’s, especially in a medical malpractice context. None of that changes the underlying question of whether the death was actually caused by someone else’s wrongful act or negligence in the first place — that threshold question is still governed by the same basic negligence principles that apply to any Florida injury claim.
Frequently Asked Questions
Who can file a wrongful death claim in Florida?
Only the decedent’s personal representative can file the claim, under F.S. 768.20, on behalf of the decedent’s survivors and estate — individual family members don’t file separate lawsuits.
Who counts as a “survivor” under Florida’s wrongful death law?
Under F.S. 768.18, survivors include the decedent’s spouse, children, and parents, plus other blood relatives or adoptive siblings who were dependent on the decedent for support or services.
What is the deadline to file a wrongful death claim in Florida?
Two years, under F.S. 95.11(5)(e), generally running from the date of death.
What damages can be recovered in a Florida wrongful death case?
F.S. 768.21 allows recovery for lost support and services, a surviving spouse’s loss of companionship and mental suffering, a child’s loss of parental companionship, a parent’s mental pain and suffering, medical and funeral expenses, and the estate’s lost earnings and prospective net accumulations — with the specific categories available depending on the survivor’s relationship to the decedent.