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Florida Wrongful Death Law

Florida Wrongful Death Law

Both state and federal law offer justice for those who have died as a result of injuries sustained in an accident caused by a wrongdoer.  As a general rule, The Florida Wrongful Death Act will apply in cases where an accident victim perishes from the injuries.  The Act is found in Florida Statutes 768.16 – 768.26.

There may be some situations where the Florida Wrongful Death Act is superseded by federal statutes, such as the Federal Employers Liability Act or the Federal Death on the High Seas Act.  However, most of the wrongful death cases filed in here in Florida comport with the state statute.

Purpose of the law: Why is there a Wrongful Death Act?

In Florida, the right to sue for damages resulting from the wrongful death of an accident victim is a creation of legislative action. All wrongful death claims are controlled by and must comply with, the provisions of the Florida Wrongful Death Act.

Filling a gap in court case precedent, the Florida legislature passed its wrongful death act for three reasons. The purposes behind the Florida Wrongful Death Act are:

  1. To force the wrongdoer who caused the death of the plaintiff to assume financial responsibility and meet the financial obligations of the decedent;
  2. To block those responsible for the fatal accident from avoiding liability, so they can be held legally accountable for misconduct that caused the death of an innocent victim; and
  3. In tragedies where several victims perish as a result of wrongdoing on the part of the defendant, the Wrongful Death Act serves as a tool of judicial efficiency allowing all the victims to file claims in a single suit. It prevents multiple lawsuits from being filed in scattered courtrooms across the state with plaintiffs racing to get the first judgment.

Wrongful Death Lawsuit Is Different from Survival Action

The Florida Wrongful Death Act creates a specific cause of action available to certain family members who are grieving the loss of their loved one after he or she has died in an accident caused by the negligence of another.   It is a suit brought on behalf of the victim’s loved ones.

The statutes specify who can file this kind of lawsuit. Not every family member is included as a beneficiary who can file a wrongful death action under the Wrongful Death Act.

Wrongful death actions are lawsuits filed by surviving family members so they can hopefully recover the specific losses which they have sustained as a result of the death of the accident victim.

The estate of the decedent is also allowed to file a wrongful death action for the recovery of damages to the estate under the Florida Wrongful Death Act.

This is different from a survival action which is a lawsuit filed on behalf of the injured person who was hurt in the accident.  The survival lawsuit seeks damages for the victim, not the family members.

Survival actions are filed by accident victims who have been injured, sometimes severely and permanently, but have lived and survived the accident.  If the victim dies, then his estate proceeds with a wrongful death action that is filed by the Personal Representative appointed to represent the victim’s estate.

What about those situations where the cause of death is unclear?  Defendants may argue fault lies elsewhere and that they are not responsible for what happened to the victim.  When the cause of the accident victim’s death is disputed and becomes a fact issue for trial, Florida law allows both a survival lawsuit under Florida Statute 46.021 and a wrongful death action under Florida Statute 768.19 to proceed at the same time.  See,  Florida Statute  46.021; Florida Statute 768.19.

From Florida Statute 46.021:

No cause of action dies with the person. All causes of action survive and may be commenced, prosecuted, and defended in the name of the person prescribed by law.

Choice-Of-Law:  Florida Wrongful Death Act

There are times when the Florida Wrongful Death Act will apply to accidents that take place in other countries as well as other states.  Because the Florida legislature passed the wrongful death statute to make sure justice was done for the survivors of a victim of wrongful death, the Florida Wrongful Death Act has been held to apply in situations where Florida has sufficient contacts, and the jurisdiction where the accident takes place fails to provide an adequate remedy for the victim surviving loved ones.

Foreign Nation Example

For instance, the Florida Wrongful Death Act was held to apply in a situation where there was a fatal airplane crash in Colombia, and the victim was Columbian.

Florida had two main connections to the crash.  The airplane itself was owned by an airline that did substantial business in the state of Florida, American Airlines. Also, the plane was flown by pilots who lived in Florida.

It was held that the accident victim, who was Columbian, had a valid cause of action for wrongful death act damages under the Florida Wrongful Death Act.  Piamba Cortes v. American Airlines, Inc., 177 F.3d 1272 (11th Cir. 1999).

Foundation for Filing a Florida Wrongful Death Claim

Under the language of the Florida Wrongful Death Act, a lawsuit for wrongful death damages can only be filed based upon a death resulting from a “wrongful act, negligence, default, or breach of contract or warranty.”   Florida Statute 768.19.  Anyone filing a wrongful death lawsuit in Florida must include an explanation in their complaint of the breach of a legal duty owed by the defendant to the decedent, or the underlying tort upon which the wrongful death action is based.

In addition to the proper language in the pleadings, the plaintiff must be prepared to provide authenticated and admissible evidence to support these allegations. Absent sufficient evidence that Florida Statute 768.19 applies, the defendant may be able to file a successful Motion For Summary Judgment and swiftly obtain a dismissal of the cause of action.

What the Complaint Must Provide

When the death has been caused by an accident resulting from the defendant’s negligence, the key factor to be demonstrated by the plaintiff is the duty owed to the decedent by the defendant. There must be evidence of the following:

  1. A specific legal duty owed to the decedent by the defendant;
  2. a breach of that duty by the defendant;
  3. the legal or proximate cause of death was that breach of duty;
  4. Consequential damages sustained by those filing the wrongful death action.

Fritsch v. Rocky Bayou Country Club, Inc., 799 So. 2d 433 (Fla. Dist. Ct. App. 2001).

Negligence Per Se

If the plaintiff can show a law has been broken, then the job of proving the applicability of The Wrongful Death Act may be easier.   If the defendant violated a state statute, federal law, or agency regulation that (1) exists to provide protection to a particular class of individuals, or if the statute, law, or regulation was created (2) to form a legal duty on the part of the defendant to take specific protections against people being hurt or killed, then evidence demonstrating the defendant violated that statute, law, or regulation, establishes negligence per se.

The violation of the law proves the first three elements of the above requirements, leaving only evidence of the damages sustained to be shown.

For instance, after the tragic death of a nursing home resident due to abuse and neglect, the personal representative of the decedent’s estate was able to file for damages under the Florida Wrongful Death Act based upon an allegation of Florida Statute 400.023 being violated by the care facility.  Graber v. Joseph L. Morse Geriatric Center, Inc., 837 So. 2d 473 (Fla. Dist. Ct. App. 2002).

Who Can File A Claim Under The Florida Wrongful Death Act?

The Florida Wrongful Death Act specifies what family members are allowed to seek claims for damages against those responsible for the accident that has claimed the life of their loved one. Under Florida Statute 768.20, only the following family members can legally seek wrongful death damages in the state of Florida:

  1. The spouse who survives the death of their husband or wife
  2. The children who survived the death of their parent
  3. The parents of the person who died in the accident
  4. Any blood relatives who were at least partially dependent upon the person who passed away for their support or services
  5. Adopted siblings of the person who died, if these brothers or sisters were at least partially dependent on the decedent for support or services at the time of his or her death.

As for the children, any child under the age of 25 years old is considered a minor child under the Florida Wrongful Death Act.  Florida Statute 768.18(1).

These family members, called “survivors” under the Act, do not file the wrongful death lawsuit themselves.  The Personal Representative of the decedent’s estate must file the formal wrongful death claim.

It is the responsibility of the Personal Representative to determine the need for a wrongful death action and to assert all damages caused by the wrongful death on behalf of and for the benefit of these family members.  The estate itself may also seek wrongful-death damages.

In the initial complaint filed to institute the lawsuit, all potential beneficiaries of wrongful death damages must be identified by name and their relationship to the decedent explained.   Florida Statute 768.21.

 Venue:  Where a Wrongful Death Claim Must Be Filed

There’s no specific language within the Florida Wrongful Death Act that controls where the lawsuit seeking damages for the survivors must be filed.  The Act does not have any procedure on which court in which to file the complaint.

Without a venue provision within the Act itself, Florida’s general venue provisions apply.   Accordingly, the Florida wrongful death lawsuit must be filed in (1) the county where the defendant resides or (2) where the cause of action accrued.

Where does the cause of action accrue?  In cases of wrongful death, the cause of action accrues in the county where the negligent act that caused of death was committed by the defendant.  It is not the county where the death actually happened.

There is one statutory exception to this general rule.

When an agency of the State of Florida is involved as the defendant in a wrongful death case and it is alleged negligence on the part of the state agency resulted in the death of the decedent, then the venue is specific.

These wrongful death cases must be filed in the county where the agency maintains its principal headquarters. This is true even if other defendants are also named in the wrongful death cause of action.

As an example, when the decedent died in an automobile accident allegedly caused by the negligence of a corporation, the proper venue lies where the accident occurred.  This was held to be a proper venue even though the plaintiff had initially filed the lawsuit in the county where the corporation had a registered agent and where it was much more convenient for both the plaintiffs and out-of-state witnesses to travel.

The venue does not necessarily rest in the most convenient court.  The venue is held appropriately according to the proper venue defined by provisions of the Florida Statutes.  Avis Rent A Car System, Inc. v. Broughton, 672 So. 2d 656 (Fla. Dist. Ct. App. 1996).

Deadline to File Wrongful Death Lawsuit

The Florida Wrongful Death Act has a clear deadline for those wishing to file lawsuits seeking damages for the wrongful death of a loved one. In Florida, the general rule is wrongful death lawsuits must be filed within two (2) years from the date of the decedent’s death.

When calculating the limitations’ deadline, the day of death is not included in the time count. If the last day of the time period falls on a Saturday, Sunday, or legal holiday, then the calculation runs until the end of the next day which is not either a  Saturday, Sunday, or a legal holiday.

There are exceptions to the two-year deadline established in the wrongful-death act itself.

First, limitations are different in cases where the death was the result of murder or manslaughter.  Both are considered intentional torts defined by criminal law. The statute of limitations has been eliminated altogether for any wrongful death lawsuit filed due to a death based upon murder or manslaughter.   In these cases, there is no deadline for filing a wrongful death action.  Florida Statute 95.11(10).

Another exception is found in the Tort Claims Act.  This statute has a four (4) year deadline established for filing claims for wrongful death when the defendant is the State of Florida itself or any of its agencies or subdivisions. See Florida Statute 768.28.

What happens if the limitations deadline is passed and the wrongful death lawsuit is barred because of the Statute of Limitations?   Then the survivors and the deceased’s estate may have a cause of action for damages against the Personal Representative.   It is one of the fiduciary duties of the Personal Representative to discover if there is a viable wrongful death cause of action and to assert those claims on a timely basis.

Wrongful Death Damages

Under the Florida Wrongful Death Act, the decedent’s Personal Representative has the legal duty and responsibility of filing the actual lawsuit seeking wrongful death damages on behalf of the estate as well as the decedent’s survivors.   The Personal Representative must determine what damages are available for each survivor, and not only assert but prove each element of damage.

Available Damages for Survivors

Under the Florida Wrongful Death Act (Florida Statute 768.21), the following types of damages may be recovered by the survivors and the estate:


  • the value of lost support and services from the date of the decedent’s injury to her or his death, with interest; and
  • future loss of support and services from the date of death reduced to present value.

In evaluating loss of support and services, the survivor’s relationship to the decedent, the amount of the decedent’s probable net income available for distribution to the particular survivor, and the replacement value of the decedent’s services to the survivor may be considered.

In computing the duration of future losses, the joint life expectancies of the survivor and the decedent and the period of minority, in the case of healthy minor children, may be considered.

Surviving Spouse

The surviving spouse may also recover for:

  • loss of the decedent’s companionship and protection and for
  • mental pain and suffering from the date of injury.


Minor children of the decedent, and all children of the decedent if there is no surviving spouse, may also recover for:

  • lost parental companionship, instruction, and guidance, and for
  • mental pain and suffering from the date of injury.

Parents of the Deceased Child

Parents may recover for:

  • deceased minor child, may also recover for mental pain and suffering from the date of injury.
  • a deceased adult child may also recover for mental pain and suffering if there are no other survivors.

Medical and Funeral Expenses

Medical or funeral expenses due to the decedent’s injury or death may be recovered by a survivor who has paid them.

Pain and Suffering

In a wrongful death case, the survivors are allowed recovery for their personal pain and suffering, but not for the decedent’s pain and suffering from the time of the fatal injury to the time of his or her death.

Available Damages for Estate

The decedent’s Personal Representative may recover for the decedent’s estate the following pursuant to Florida Statute 768.21 :

Lost Earnings and Earning Capacity

  • 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, may also be recovered:

1) If the decedent’s survivors include a surviving spouse or lineal descendants; or

2) If the decedent is not a minor child as defined in  Florida Statute 768.18(2), there are no lost support and services recoverable under subsection (1), and there is a surviving parent.

Medical and Funeral expenses

The estate can recover medical or funeral expenses due to the decedent’s injury or death that have become a charge against her or his estate or that were paid by or on behalf of the decedent, excluding amounts recoverable by a survivor.

Punitive Damages

Once the compensatory actual damages have been explained to the jury, the Florida Wrongful Death Act does allow the plaintiff to seek punitive damages as well.

Punitive damages can be awarded in a wrongful death case if the defendant’s wrongful conduct is shown to be either wanton or reckless.  These are damages assessed as punishment.

Punitive damages are not based upon any losses suffered by the survivors. Punitive damages are allowed to be recovered by the plaintiff under public policy reasons.

The right to seek punitive damages in a wrongful death case is granted to the Personal Representative of the estate.   Gresham v. Strickland, 784 So. 2d 578 (Fla. Dist. Ct. App. 2001).

Survivors in actions for wrongful death are not allowed to pursue individual claims for punitive damages. The Florida legislature allows for only one punitive damages recovery in a wrongful death case.

If the wrongdoer dies prior to trial, recovery of punitive damages is not allowed under Florida law. This is because the lawmakers thought it would be unjust for the wrongdoer’s innocent heirs to be forced to pay punitive damages for the decedent-wrongdoer’s actions.  The only reason the punitive damages are assessed is to punish the wrongdoer whose actions caused the death of the decedent.

What must be shown the support of an award of punitive damages in a wrongful death case?

The Florida courts have established that the basis for punitive damages in a wrongful death case is a reckless disregard for human life that is equivalent to the criminal definition of manslaughter. The plaintiff must meet the standard of culpable negligence.  Culpable negligence is defined as a course of conduct that involves:

  1. Reckless disregard of human life or anyone exposed to its dangerous effects;
  2. An entire want of care on the part of the wrongdoer sufficient to raise a presumption of conscious indifference to consequences;
  3. Wantonness or recklessness or a grossly careless disregard of the safety and Welfare of the public; or
  4. such an indifference to the rights of others as is equivalent to an intentional violation of such rights.

CSX Transp., Inc. v. Palank, 743 So. 2d 556 (Fla. Dist. Ct. App. 1999).

Do You Have a Question? Contact Us Today for a Straight Forward Case Evaluation

As a Board-Certified Civil Trial Expert for over 40 years, Alan Sackrin has extensive experience dealing with wrongful death cases. He offers a free initial consultation (over the phone or in person) to answer your questions. When you’re ready to speak with a personal injury lawyer about your case, call Alan at 945-458-8655 or send him an email through our contact page.

For more information About Alan Sackrin See his Wrongful Death Lawyer Page.