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Practice · wrongful death
Florida’s wrongful death claim runs through the estate
It is not a case the family files directly. Understanding that one structural fact explains most of what happens in the first weeks — and why the two-year deadline is tighter than it looks.
Fla. Stat. §§768.16–768.26
One action, brought by one person, for everybody
Florida’s Wrongful Death Act is deliberately structured. The action is brought by the personal representative of the deceased person’s estate, and that single action covers the claims of the estate and of every statutory survivor at once. Individual family members do not each file their own case.
Practically, this means an estate usually has to be opened in probate and a personal representative appointed before anything can be filed on the family’s behalf. If there is a will, it will normally name someone. If there is not, the statute sets an order of preference. That step takes time, and it happens during the worst weeks a family will have.
It also means the family’s first decisions are administrative when they least want them to be: who serves as personal representative, what the estate consists of, and what has to be preserved before it is thrown away.
Fla. Stat. §768.18 and §768.21
Who the statute counts, and what each may recover
“Survivors” is a defined term, not a general word. It covers the surviving spouse, children and parents, and blood relatives or adoptive siblings who were partly or wholly dependent on the deceased for support or services.
- A surviving spouse may recover for loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury.
- Children may recover for lost parental companionship, instruction and guidance and for mental pain and suffering, with the statute drawing distinctions based on age and on whether there is a surviving spouse.
- Parents of a deceased minor child may recover for mental pain and suffering; for an adult child the statute is narrower.
- Each survivor may recover the value of lost support and services, and whoever paid medical or funeral expenses may recover those.
- The estate itself may recover lost earnings and net accumulations as the statute provides.
Those are categories, not amounts. Anyone who quotes you an amount before reading the file is selling something.
Two years
The deadline, and why it is shorter than it reads
An action for wrongful death must be begun within two years (Fla. Stat. §95.11(4)(e)). Unlike the general negligence limit, this one was not changed by the 2023 amendments — it has been two years throughout.
What consumes it is everything that has to happen first. Probate has to be opened and a personal representative appointed. Records have to be gathered from hospitals, medical examiners and law enforcement, none of which move quickly. If a government body is involved, §768.28 adds its own written-notice requirement and its own limits. Two years spent that way is not long.
What to preserve now
The vehicle, machine, product or scene involved, exactly as it is. Every document, bill and letter, including the ones that seem routine. Phones and devices. Written notes of who said what, and when. Preserving costs nothing; replacing what has been destroyed is usually impossible.
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Not an intake centre, not a call-screener working from a script. Tell us what happened and you will get a straight answer about whether there is a claim worth bringing.
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Straight answers
Wrongful death questions
Who is allowed to file a wrongful death case in Florida?
Only the personal representative of the deceased person’s estate. Under the Florida Wrongful Death Act the action is brought by the personal representative, who recovers on behalf of the estate and on behalf of all statutory survivors (Fla. Stat. §768.20). A grieving family member cannot simply file in their own name, which is why an estate usually has to be opened first.
Who counts as a survivor?
The Act defines them: the surviving spouse, children, parents, and, when partly or wholly dependent on the deceased for support or services, any blood relative or adoptive brother or sister (Fla. Stat. §768.18(1)). Different survivors are entitled to different categories of damages under §768.21.
Does a criminal case against the driver take care of it?
No. A criminal prosecution is the State’s case and is about punishment; a wrongful death action is the estate’s civil case and is about the loss to the survivors. They run in parallel, under different rules and different standards of proof, and one can end without affecting the other.
How long do we have?
Two years from the death (Fla. Stat. §95.11(4)(e)). That deadline did not change in 2023; wrongful death has been on a two-year clock. Opening the estate and having a personal representative appointed takes time of its own, which is why two years is shorter than it sounds.
What can be recovered?
The statute sets out categories rather than a number: lost support and services, loss of companionship and protection, mental pain and suffering for certain survivors, medical and funeral expenses, and losses to the estate (Fla. Stat. §768.21). What any particular case is worth depends entirely on its own facts, and no honest lawyer will tell you a figure before knowing them.
We are not ready to talk to a lawyer yet.
That is normal and it is all right. The only reason to make the call earlier rather than later is that evidence disappears and the two-year clock runs regardless of how anyone feels. A first conversation costs nothing and commits you to nothing.
How the fee works
The first conversation is free. After that this office works on a contingency fee: an attorney’s fee is charged only out of a recovery, so if there is no recovery there is no attorney’s fee. Case costs and expenses are a separate thing from the fee — filing fees, records, retained witnesses and the like — and how those are handled is set out in the written fee agreement before you sign it. Ask about them on the first call; you should never have to guess.