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Who Can File a Wrongful Death Lawsuit in Florida?

who can file wrongful death claim

Florida law empowers a single person to file a wrongful death lawsuit: the personal representative of the estate of the deceased person. To file a successful wrongful death case, the personal representative must be prepared to show that:

  • The death resulted from the wrongful act, negligence, default or breach of contract or warranty, and
  • The event would have entitled the deceased to maintain an action had they survived

Unlike most lawsuits, in which the plaintiff is the person seeking compensation, the personal representative isn’t entitled to compensation–at least, not in the role of personal representative. Instead, a Florida personal representative files a wrongful death claim on behalf of the estate and any eligible surviving family members.

Unlike some other states, Florida does not provide a back-up option if the personal representative fails or refuses to file a wrongful death claim. However, if there is a viable wrongful death claim and a source of funds to pay compensation–either through insurance or directly from the responsible party–interested parties may have options. Surviving family members who would be entitled to compensation or beneficiaries of the estate may be able to petition the probate court to direct the personal representative to file the wrongful death lawsuit.

The best source of information about filing a wrongful death lawsuit and who may benefit is an experienced Florida wrongful death attorney. This overview will give you a general idea of who may be entitled to compensation and how that compensation is determined.

Who are the Beneficiaries of a Florida Wrongful Death Claim?

The Estate of the Deceased

When an injured person dies, their personal injury claim dies with them. The personal representative can bring a wrongful death lawsuit on behalf of the estate. However, those claims are much more limited than the claims available in a Florida personal injury case. The estate can only recover very specific damages, which include funeral expenses, medical expenses attributable to the injury that caused the death, and some limited lost earnings. Under limited circumstances, the estate may also be entitled to compensation for the increased value that would likely have accumulated if the deceased had lived.

Surviving Family Members of the Deceased

All of the other wrongful death claims a personal representative may bring are to benefit surviving family members of the deceased. But, the list of eligible relatives is limited, and the compensation available to each eligible family member is different. The broadest compensation is available to the surviving spouse and/or minor children of the deceased. It’s important to note that “minor child” has a different meaning in the Florida wrongful death statute than in most other areas of Florida law. In a wrongful death suit, a minor child is a child of the deceased who has not yet reached the age of 25.

Compensation for the Surviving Spouse

The surviving spouse is entitled to compensation for lost services and support, both from the time the deceased was injured to the time of their death and in the future. However, future losses are reduced to present value. The spouse is also entitled to compensation for mental pain and suffering, as well as loss of companionship and protection.

Often, the surviving spouse of the deceased will also be the personal representative of the estate. In that case, the spouse is entitled to compensation as described above. However, he or she is also acting in a fiduciary role, with an obligation to beneficiaries of the estate and to other surviving family members who may be eligible for compensation. The personal representative cannot act in their own best interests to the detriment of these other parties.

Compensation for Children

The compensation available to surviving minor children of the deceased is similar to the compensation available to the surviving spouse. They are entitled to compensation for lost services and support, as well as mental pain and suffering, and loss of companionship, instruction and guidance.

Adult children (meaning here children of the deceased who are at least 25) may be entitled to recover for loss of companionship, instruction and guidance, and mental pain and suffering only if there is no surviving spouse.

A child born out of wedlock is not entitled to compensation for the death of their biological father unless the father had recognized responsibility for their support.

Compensation for Parents

Parents of a deceased child may recover for loss of services and support, if they were dependent on the deceased. If the deceased child was a minor, they may also recover for mental pain and suffering. If the deceased child was an adult, parents are entitled to compensation for mental pain and suffering only if there are no other survivors.

Compensation for Other Surviving Relatives

Any biological relative of the deceased or adoptive sibling who depended on the deceased for services and support may be entitled to compensation for that loss.

Determining Compensation in a Florida Wrongful Death Case

Each category of surviving relative is entitled to different types of compensation. But, it’s important to note that these are only types of damages and not amounts. Imagine, for example, that two minor children both lived at home with the deceased. One child is 12 years old and fully dependent on parental support. The other is 20 years old and, although still living at home, has a full-time job.

The 12-year-old child will almost certainly have more significant actual losses, in terms of both financial support and loss of companionship, instruction and guidance than the 20-year old. This same type of analysis will apply to all eligible relatives.

Talk to a Wrongful Death Attorney

A Florida personal representative will typically be represented by a probate attorney in the management of the estate. However, probate administration and wrongful death claims are two very different areas of law. If you’re considering a wrongful death claim—or don’t know whether or not you may have a valid wrongful death case—your best next step is to schedule a consultation with one of our personal injury attorneys who are highly skilled and knowledgeable in the area of wrongful death claims.

You can get started right now. Just call 904-251-1111 or fill out the contact form on this site.