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Wrongful Death Law

When someone takes the life of another, whether it was intentional or the result of negligence, the offender will likely face felony criminal charges and a lengthy prison sentence. But regardless of the underlying criminal charge (or lack thereof), anyone deemed responsible for causing the death of another may also be sued in civil court for wrongful death. The Florida Wrongful Death Act allows family members of the deceased to file a wrongful death suit against the person or entity they believe is responsible for their loved one’s death. This article provides the basics of Florida’s wrongful death laws, including who may bring such a claim and the types of compensation that may be awarded.

Overview of Wrongful Death Claims

Wrongful death is a tort claim that arises when an individual is liable for another’s death. While it often is related to a murder or manslaughter criminal charge, it is an independent legal action that seeks monetary compensation for the survivors, such as children and spouses, and for the estate itself. Wrongful death claims typically are made for pain and suffering, loss of companionship, and the value of lost support.

Under Florida law, such a claim may be filed when the individual’s death was caused by “the wrongful act, negligence, default, or breach of contract or warranty of any person, including those occurring on navigable waters.” Also, the state generally allows claims for damages incurred from when the injury occurred to the point of death, plus interest, in addition to projected future earnings.

Florida Wrongful Death Laws at a Glance

Statute Florida Wrongful Death Act: § 768.16 – 768.26
Statute of Limitations 4 years (§ 95.11)
Who May File a Wrongful Death Claim Personal representative of the deceased individual’s estate, on behalf of:

  • Spouse, children, and parents of the deceased; and
  • Blood relatives or adoptive siblings who are “partly or wholly” dependent on the decedent.

(§ 768.20)

Damages Available to Survivors in a Wrongful Death Claim
  • Lost support and services to survivors (relationship to the deceased, probable future income of the deceased, and replacement value of lost support and services are considered)
  • Surviving spouse’s lost companionship and protection, plus pain and suffering
  • Minor children’s lost parental companionship, instruction, and guidance; plus pain and suffering (all children, not just minors, if there is no surviving spouse)
  • Parents of deceased child may claim damages for pain and suffering
  • Medical and/or funeral expenses

(§ 768.21)

Damages Available to the Estate in a Wrongful Death Claim
  • Loss of earnings of the deceased from the date of injury to the date of death, less lost support of survivors excluding contributions in kind, with interest
  • Loss of the prospective net accumulations of an estate, which might reasonably have been expected but for the wrongful death, reduced to present money value
  • Medical or funeral expenses paid by or on behalf of the decedent

(§ 768.21)

Note: Amounts awarded to each survivor named in the wrongful death claim, and to the estate itself, are stated separately in the verdict (§ 768.22).

Note: State laws are always subject to change through the passage of new legislation, rulings in the higher courts (including federal decisions), ballot initiatives, and other means. While we strive to provide the most current information available, please consult an attorney or conduct your own legal research to verify the state law(s) you are researching.




Q: What if a person dies before bringing a personal injury lawsuit?
A: It depends on whether a person dies as a result of the injuries or from unrelated causes. If a person injured in an accident subsequently dies because of those injuries, that person’s heirs may recover money through a lawsuit. Every state has a law permitting an action when someone causes the wrongful death of another. If a person with a personal injury claim dies from unrelated causes, the claim survives in most cases and may be brought by the executor or personal representative of the deceased person’s estate.

Q: What if an unborn fetus dies?
A: Many states require that a child be born alive in order for its death to be the subject of a wrongful death action, so the death of a fetus might not be actionable. An attorney can tell you what the precise law is in your state.

Q: When someone dies, what is the difference between the civil and criminal cases that can be brought regarding the death?
A: A criminal case arises when the government seeks to punish an individual for an act that has been classified as a crime. A civil case, on the other hand, usually has to do with a dispute over the rights and duties that individuals and organizations legally owe to each other. The burden of proof is higher in a criminal case, and the penalty imposed is a criminal sanction such as imprisonment. In a civil case, the defendant will typically have a monetary judgment entered against him/her.

Q: Are punitive damages recoverable in wrongful death actions?
A: In most states, a plaintiff may not recover punitive damages in a wrongful death action. There are some states, however, that do have specific statues that permit recovery of punitive damages.

Q: Are all state laws the same regarding wrongful deaths?
A: No, there are many differences among different state wrongful death laws. Determining the state in which you can (and should) bring a wrongful death action is a very important decision, because some states do not allow certain types of damage awards and/or may have different statutes of limitation that establish the timeframe within which you must file suit.

Q: Can I bring a wrongful death action if the deceased never held a job?
A: Yes, even if the decedent never held a job, he/she may have contributed in some other way to the family. A good example of such a case is an action for the wrongful death of a stay-at-home husband or wife who contributes services, guidance and nurturing of the family. These contributions are quantifiable as “pecuniary losses” in a wrongful death action.

Q: Can someone sue for the pain and suffering of a decedent?
A: Yes, in addition to the wrongful death, a decedent’s family may recover damages for the pain and suffering that the decedent endured prior to death.

Q: Can I bring a wrongful death action based on the death of a child or an elderly person?
A: Yes, you can recover damages in a wrongful death cause of action for the death of either a child or an elderly person. For a variety of reasons, however, the damage awards for both classes of decedent are usually modest.

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