Losing a loved one because of someone else’s carelessness is devastating. In the middle of grief, families often ask a hard question: who can sue for wrongful death? In Florida, the answer has two parts. One person files the lawsuit. But the recovery can belong to several family members and the estate. At Padron & Lopez-Trigo, P.A., understanding how this works can help your family make informed choices.
Key Takeaways
- In the middle of grief, families often ask a hard question: who can sue for wrongful death?
- Under the Florida Wrongful Death Act, a wrongful death claim can arise when a person dies because of another’s wrongful act, negligence, default or breach of contract or warranty.
- In Florida, family members do not each file their own lawsuit.
- Section 768.18 of the Florida Statutes defines survivors.
- Siblings are generally survivors only if they were partly or wholly dependent on the decedent for support or services.
What Is a Wrongful Death Claim?
Under the Florida Wrongful Death Act, a wrongful death claim can arise when a person dies because of another’s wrongful act, negligence, default or breach of contract or warranty. Common examples include car crashes, truck accidents, unsafe property conditions, defective products and medical negligence.
Who Actually Files the Lawsuit?
In Florida, family members do not each file their own lawsuit. Under section 768.20 of the Florida Statutes, the action is brought by the decedent’s personal representative. The personal representative files on behalf of the estate and all survivors. This person is often named in the decedent’s will. If there is no will, a probate court can appoint one.
Who Counts as a Survivor?
Section 768.18 of the Florida Statutes defines survivors. They include:
- The decedent’s spouse
- The decedent’s children
- The decedent’s parents
- Any blood relatives and adoptive brothers and sisters who were partly or wholly dependent on the decedent for support or services
Children born out of wedlock may also count in certain situations described in the statute.
What Does “Minor Child” Mean?
This often surprises families. Under section 768.18, a “minor child” for wrongful death purposes means a child under 25 years of age, even if the child is married or emancipated. That definition affects which damages a child can recover.
Can Parents File for an Adult Child?
The personal representative still files the claim. But parents can be survivors. Under section 768.21, each parent of a deceased minor child may recover for mental pain and suffering. Each parent of an adult child may recover for mental pain and suffering only if there are no other survivors. Special limits apply in medical negligence cases.
Can Siblings Recover?
Siblings are generally survivors only if they were partly or wholly dependent on the decedent for support or services. A sibling who was not dependent usually cannot recover as a survivor.
What About the Estate?
The estate is also part of the claim. The personal representative can recover certain losses for the estate, such as medical or funeral expenses paid by the estate and some lost earnings. These amounts can be subject to valid creditor claims under probate law.
Party | Role in the claim |
Personal representative | Files the lawsuit for everyone |
Surviving spouse | Survivor with specific damages |
Children | Survivors, with special rules for those under 25 |
Parents | Survivors, with limits for adult children |
Dependent relatives | Survivors if partly or wholly dependent |
Estate | Recovers certain expenses and losses |
How Long Do Families Have to File?
Florida generally gives two years from the date of death to file a wrongful death action. Some cases have different rules. Waiting can put a claim at risk, so it is wise to talk with a lawyer early.
Why Do Medical Negligence Cases Differ?
Section 768.21(8) limits certain damages in medical negligence cases. Adult children cannot recover for lost parental companionship and pain and suffering. Parents of an adult child cannot recover for pain and suffering. These rules can change who has a claim for those losses.
What Should Families Do First?
- Gather the death certificate and any police or incident reports.
- Find the will, if there is one.
- Keep medical and funeral bills.
- Do not give recorded statements to insurers without advice.
- Talk with a lawyer about appointing a personal representative.
Simple Steps for the First Weeks
Take time to grieve. Then gather papers. Find the will, if there is one. Find insurance cards. Get the death certificate. Get the police or incident report. Write down the names of all close family members. Note the ages of each child. Keep every bill. Save every letter from an insurer. Do not sign anything from an insurer yet. Do not post about the death on social media. Ask a lawyer who should serve as personal representative. Ask how the estate gets opened. Ask about the two-year deadline. These small steps can protect the claim.
Questions to Ask a Lawyer
- Who in my family counts as a survivor?
- Who should be the personal representative?
- What evidence should we save now?
- How long do we have to file?
- How will the money be divided?
Common Mistakes to Avoid
- Assuming each relative must file separately
- Waiting too long to open an estate
- Missing the filing deadline
- Talking to insurance adjusters without guidance
Talk With a Florida Wrongful Death Lawyer
Knowing who can sue for wrongful death is the first step. Padron & Lopez-Trigo, P.A. focuses on personal injury and wrongful death cases. Our attorneys began their careers as Miami prosecutors. Learn more about our wrongful death practice. If you have questions after losing a loved one or suffering an injury, call Padron & Lopez-Trigo, P.A. at (305) 686-5570 or contact us online for a free case evaluation.
This article is general information about Florida law and is not legal advice. Reading it does not create an attorney-client relationship. Every case is different, and laws change. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
Frequently Asked Questions
Q: Who files a wrongful death lawsuit in Florida?
A: The personal representative of the decedent’s estate.
Q: Who are survivors under Florida law?
A: The spouse, children, parents and dependent blood relatives or adoptive siblings.
Q: What is a minor child under Florida’s wrongful death law?
A: A child under 25 years of age.
Q: Can a parent recover for an adult child’s death?
A: Only if there are no other survivors, with limits in medical negligence cases.
Q: How long do I have to file a wrongful death claim in Florida?
A: Generally two years from the date of death.