Florida
Florida Wrongful Death Law: Statute, Damages & Survival Actions
Florida gives families two years from the date of death to file a wrongful death claim. Only the personal representative of the estate can file — but the damages flow to specific family members based on their relationship to the deceased.
By 411 Press Legal Desk8 min read
A 34-year-old mother of two is killed in a crosswalk by a driver who ran a red light. She leaves behind a husband, a 6-year-old son, and a 3-year-old daughter. Her husband earns less than she did. The children will grow up without her guidance, support, and companionship.
Florida's Wrongful Death Act provides a legal framework for this family to seek accountability and compensation. But the rules are specific — only certain people can file, only certain family members can recover, and the categories of damages depend on who the survivor is.
This guide covers Florida wrongful death law as it stands today, including changes from the 2023 tort reform.
Statute of Limitations
Two years from the date of death. Under Florida's Wrongful Death Act (Florida Statutes § 768.19), the lawsuit must be filed within two years of the decedent's death — not the date of the incident that caused it. If the victim survived for months after the injury before dying, the clock starts at death.
Critical exception for homicide: If the death resulted from murder or manslaughter, there is no statute of limitations. A wrongful death suit can be filed at any time, regardless of how much time has passed, and regardless of whether the accused was arrested, charged, or convicted.
Tolling exceptions: The statute may be tolled for minors and persons with mental incapacity.
Who Can File
Only the personal representative of the decedent's estate can file a Florida wrongful death lawsuit. This is not optional — individual family members cannot file on their own behalf, even if they are the surviving spouse or children.
The personal representative is appointed by the probate court. If the decedent had a will, the executor named in the will typically serves as personal representative. If there was no will, the court appoints an administrator — usually the surviving spouse or a close family member.
The personal representative files the lawsuit on behalf of all statutory beneficiaries. The damages recovered are allocated to specific family members based on their relationship to the deceased, as defined in Florida Statutes § 768.21.
Who Can Recover Damages
Florida's Wrongful Death Act specifies who qualifies as a beneficiary and what each category can recover:
Surviving Spouse
- Loss of the decedent's companionship and protection
- Mental pain and suffering from the date of injury
- Lost support and services from the date of injury
Minor Children (Under 25)
- Lost parental companionship, instruction, and guidance
- Mental pain and suffering
Adult Children (25 and Over)
- May recover for mental pain and suffering only if there is no surviving spouse. If a surviving spouse exists, adult children over 25 are generally not entitled to non-economic damages.
Parents of a Minor Child
- Mental pain and suffering for the death of their minor child
Parents of an Adult Child
- Mental pain and suffering only if there are no other surviving beneficiaries (no spouse, no children)
The Estate
- Lost earnings from the date of injury to the date of death
- Lost prospective net accumulations (the income the decedent would have earned over their remaining lifetime, minus personal living expenses)
- Medical expenses incurred between the injury and death
- Funeral and burial expenses
Legal Standard
A Florida wrongful death claim requires proof that the death was caused by the wrongful act, negligence, default, or breach of contract of another party. The same elements that apply to personal injury cases apply here:
- Duty. The defendant owed a duty of care to the decedent.
- Breach. The defendant breached that duty through an act or omission.
- Causation. The breach was a proximate cause of the death.
- Damages. The survivors suffered compensable losses.
Modified Comparative Fault
Florida's modified comparative negligence rules (post-HB 837, effective March 24, 2023) apply to wrongful death claims. If the decedent was more than 50% at fault for their own death, the survivors recover nothing.
This change from pure to modified comparative negligence has significant implications for wrongful death cases where the decedent's own conduct is at issue — for example, a pedestrian who jaywalked before being struck.
Medical malpractice wrongful death claims remain under pure comparative negligence.
Key Florida Cases
Martin v. United Security Services (Fla. 1975)
The Florida Supreme Court addressed the constitutionality of Florida's Wrongful Death Act (§§ 768.16-768.27). The court held that the Act constitutionally consolidated survival and wrongful death actions into a single lawsuit and substituted the survivors' pain and suffering for the decedent's as an element of damages. The court also held that punitive damages were not eliminated by the Act and may be recovered once for each death if the facts justify it. This case remains the foundational authority for how Florida's wrongful death and survival actions interact.
Capone v. Philip Morris USA (Fla. 2013)
The Florida Supreme Court addressed whether a personal injury lawsuit could be amended to include wrongful death claims after the plaintiff died during litigation. Frank Capone sued Philip Morris for lung cancer caused by smoking. After his death in 2006, his wife sought to amend the complaint to add wrongful death claims. The court held that "abate" under § 768.20 did not require dismissal of the entire action — instead, the personal representative could be substituted and the complaint amended to include wrongful death or survival damages claims. This clarified the procedural relationship between pending personal injury actions and wrongful death claims in Florida.
The Personal Representative Requirement
Florida courts have consistently held that the personal representative requirement under § 768.20 is mandatory and jurisdictional. A wrongful death claim filed by an individual family member — rather than a court-appointed personal representative — faces dismissal. This requirement means families must open probate and obtain formal appointment before filing suit, which can create timing pressure when the two-year statute of limitations is running. The appointment process typically requires petitioning the circuit court's probate division with the decedent's will (or, if no will exists, a petition for administration). Once appointed, the personal representative's authority relates back to the date of death.
Common Wrongful Death Scenarios in Florida
Motor vehicle accidents — the most common basis for Florida wrongful death claims. Florida's high traffic volume, significant tourist driving population, and motorcycle culture contribute to fatal accident rates consistently above the national average.
Medical malpractice — surgical errors, medication errors, misdiagnosis, and failure to diagnose. These claims are subject to additional requirements under Florida's medical malpractice statutes (Chapter 766), including pre-suit investigation and expert affidavit requirements.
Negligent security — when inadequate security at a property contributes to a fatal criminal act. See our Florida negligent security guide.
Premises liability — fatal accidents caused by dangerous property conditions. See our Florida premises liability guide.
Defective products — product liability wrongful death claims when a defective product causes a fatal injury.
Workplace accidents — while workers' compensation generally covers workplace deaths, wrongful death claims can be filed against third parties (not the employer) whose negligence caused the death.
Available Damages
Florida wrongful death damages include both economic and non-economic components:
Economic Damages
- Lost support and services — the financial support the decedent would have provided to survivors
- Lost prospective net accumulations — the decedent's future earnings minus their personal living expenses (this goes to the estate)
- Medical expenses — treatment costs between the injury and death
- Funeral and burial expenses
Non-Economic Damages
- Loss of companionship and protection (spouse)
- Lost parental companionship, instruction, and guidance (minor children)
- Mental pain and suffering (eligible survivors as defined by § 768.21)
Punitive Damages
Available in cases where the defendant's conduct was intentionally reckless or grossly negligent. Punitive damages require clear and convincing evidence and are generally capped at three times compensatory damages or $500,000, whichever is greater.
Florida does not cap compensatory damages in wrongful death cases (except in medical malpractice cases, where separate caps apply).
Practical Next Steps
If a family member died due to someone else's negligence in Florida:
Act within two years of the death. The statute of limitations is strict. Begin the process immediately — probate must be opened and a personal representative appointed before the lawsuit can be filed.
Open probate. A personal representative must be appointed by the probate court before a wrongful death claim can proceed. This is a legal requirement, not a formality.
Preserve evidence. Depending on the circumstances, critical evidence may include:
- Police reports and accident reconstruction data
- Medical records documenting the decedent's treatment and cause of death
- Property records, maintenance logs, and security footage (in premises liability and negligent security cases)
- The decedent's financial records (tax returns, pay stubs, employment records) to establish lost earnings
Do not communicate with the defendant's insurance company without an attorney. Wrongful death claims involve complex damage calculations and insurance adjusters will attempt to minimize the payout.
Consult a Florida wrongful death attorney. These cases require coordination between the probate process and the civil lawsuit, expert testimony on lost earnings and economic damages, and (often) negotiations with multiple insurers.
Related Florida Guides
- Florida Negligent Security Law — when a security failure contributes to a death
- Florida Premises Liability Law — when a property condition causes a fatal injury
Last updated: May 27, 2026. Consult a Florida attorney for advice specific to your situation.
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