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Who Can Sue For Wrongful Death and Receive Damages in Florida

Who Can Sue For Wrongful Death in Florida 

The Florida Wrongful Death Act (FWDA) was passed by the Florida Legislature to provide a legal remedy for beneficiaries harmed by the wrongful death of a decedent.  It is legislation that constructs a civil cause of action as defined by statute.  The FWDA creates a legal right for specific beneficiaries to file a lawsuit for damages they sustained because of their loved one’s death.

Claimants Defined by FWDA

Accordingly, the Florida Wrongful Death Act lists the individuals who may seek damages under its provisions.  Not every family member grieving the loss of a loved one can recover under the Florida law, and the courts cannot expand the FWDA to include them no matter how unfair they argue their exclusion may be.

Recovery is limited only to those family members who are identified as statutory survivors under the Wrongful Death Act.  If the family member is not listed in the definition of “survivors,” then he or she cannot sue for wrongful death damages.

Personal Representative Must File Claims

These individual survivors are also limited under the FWDA in how they file their claims.   No one is allowed to file a separate or independent lawsuit for wrongful death damages.   In fact, no survivor can legally file a wrongful death case at all.

Instead, the Personal Representative appointed to represent the decedent’s estate has a responsibility to file for wrongful death damages under the FWDA.  The Personal Representative files a single wrongful death lawsuit to recover all damages due to the statutory survivors as well as to the estate itself.  Florida Statute 768.20.

The Personal Representative has a fiduciary obligation to file this lawsuit on behalf of (1) the estate as well as the (2) individual survivors.  As the FWDA states, he must file claims for “…the benefit of the decedent’s survivors and estate all damages, as specified in this act, caused by the injury resulting in death.“  Florida Statute 768.20.  If the Personal Representative fails to do so, he or she may be personally liable for this breach of duty.

The Personal Representative prepares and files the initial complaint based upon the Florida Wrongful Death Act and files it as the party plaintiff instituting the civil cause of action.

Within that initial complaint, the Personal Representative must identify all the family members who seek wrongful death damages.  The pleading must provide a detailed explanation of how each pled “survivor” is related to the decedent and meets the definition of survivor under Florida Statute 768.18.

Survivors Defined by the Florida Wrongful Death Act

Under the terms of Florida Statute 768.18, those who are legally entitled to wrongful death damages are called “survivors” under the FWDA.  The following family members of the deceased individual who has been a victim of wrongful death are statutory survivors:

  • Spouse
  • Children
  • Parents
  • Blood relatives who had been dependent upon  the decedent for support or services
  • Adopted siblings who had been dependent upon the decedent for support or services.

Conspicuous by its absence on this list are grandparents, cousins, uncles, aunts, as well as fiancés, best friends, and others who enjoyed close loving relationships with the deceased.  They cannot sue for wrongful death damages no matter how grievous their loss is because Florida law does not recognize their claim.

1. Widow or Widower: the Surviving Spouse

When a spouse dies due to the wrongful acts of another, their husband or wife is entitled to recover wrongful-death damages under the Florida Wrongful Death Act.  Florida Statute 768.18.

The couple cannot be engaged to be married.  The couple cannot have lived together for years with an “understanding” between them.  To meet the statutory requirements of the FWDA, the couple must have entered into marriage as it is legally recognized under Florida law.

Legal Marriage

In Florida, a marital relationship is established is through a legal ceremony or by meeting the legal requirements of a common-law marriage.  Common-law marriage is recognized and can be established under Florida law.  Florida courts will also recognize marriages performed under the laws of other states or countries.

Sometimes, the strict definitions of survivors under the FWDA can result in heart-wrenching results.  For example, several years ago a woman named Gladys Capo married her first husband and had two children with him before deciding to divorce.  Gladys married her second husband, Jose Capo before the divorce decree was finalized in the first marriage.

Gladys and Jose had a child.  The divorce decree was finally entered in the first marriage, and it was legally dissolved.  Sometime later, Gladys died in a car crash.

Jose Capo sued the negligent driver in that car crash for wrongful death damages as the surviving spouse of Gladys Capo.  Jose won his argument that he was an “innocent spouse” who did not know that Gladys’ first marriage had not been dissolved at the time of the second marriage.

The court recognized that Jose and Gladys went through a marriage ceremony, but at the time Gladys was still married to her first husband and technically committed bigamy by wedding Jose at that time.  Whether Jose was an “innocent spouse” did not change her legal marital status.

The court then found that because Gladys never remarried Jose Capo after her divorce was legal and before she died, Jose could not meet the legal standards of a marital relationship under Florida law.  Jose was held not to be a “surviving spouse” entitled to wrongful death benefits under the FWDA.  Capo v. Estate of Borges, 560 So. 2d 254 (Fla. Dist. Ct. App. 1990).

Finalized Divorce

Sometimes, a “surviving spouse” can be someone who is no longer a loving wife or husband committed to the union.  If a spouse has divorced their husband or wife prior to his or her death, then the divorce decree works to bar that spouse from seeking wrongful death damages under The Florida Wrongful Death Act.

However, if the divorce has not been finalized prior to the death of the decedent, then the marriage remains technically legal.  The soon-to-be ex is legally recognized as a “surviving spouse.”  Even if the divorce proceeding is in process if the divorce is not final that party is a survivor who may proceed to seek wrongful death damages under the Florida Wrongful Death Act.   Williams v. Dade County, 237 So. 2d 776 (Fla. Dist. Ct. App. 1970).

2. Children of the Deceased

Under Florida Statutes 768.18(1), any child of the decedent may seek wrongful death damages.  Of course, this includes youngsters from infants to teenagers reaching the age of majority under Florida law.

Under Florida Statute 743.07, the legal age of majority is 18 years (when an individual is recognized as an adult).

Infancy – 25 Years

However, the Florida Legislature made a special provision for the offspring of the deceased in the statutory provisions, defining the phrase “minor children” to include any child of the decedent who was under 25 years of age at the date of death.   Florida Statute 768.18(2).  Adult children between the ages of 18 and 25 may be included as “survivors” under the FWDA.

Court precedent reads this definition to apply to adult children who are 25 years old or less even if they are married at the time of their parent’s passing.  Guadalupe v. Peterson, 779 So. 2d 494 (Fla. Dist. Ct. App. 2000).

The Florida Wrongful Death Act also establishes exactly what damages may be awarded to the children of the decedent. The children of the deceased are entitled to the following wrongful death benefits:

  1. Lost Parental Companionship
  2. Lost Parental Instruction
  3. Lost Parental Guidance
  4. Mental Pain And Suffering Of The Child From The Date Of Injury Forward.

Adult Children of the Deceased: Limitation

These wrongful death damages may not be recoverable for children that are over the age of 18 if there is a surviving spouse.  Under the FWDA, when there is a widow or widower, only those adult children who are classified as “blood relatives who are dependent upon the decision for support or services” may recover damages due to the wrongful death of their parent.

For example, a parent dies leaving a daughter over the age of 18 years who is going to college full time at the time of the parent’s death.  There is also a surviving spouse.  If that adult child establishes she was being supported financially and otherwise by the decedent, she can pursue wrongful death damages under the Florida Wrongful Death Act. Owens v. Jackson, 493 So. 2d 507 (Fla. Dist. Ct. App. 1986).

However, if a parent dies leaving an adult daughter who is financially independent at the time of death, as well as a surviving spouse, then that child cannot bring a wrongful death action.  She is barred even if there is evidence that the deceased parent would loan her money to help her out from time to time. Cinghina v. Racik, 647 So. 2d 289 (Fla. Dist. Ct. App. 1994).

Adopted children

Any child that has been legally adopted under the laws of the State of Florida, or under the jurisdiction of another state or country, will be recognized as a son or daughter of the parent named in the adoption itself.  Legal adoption provides full parental rights and duties upon the parents and creates a fully vested parent-child relationship.

Accordingly, the Florida Wrongful Death Act recognizes adopted children as being “children” able to seek survivor benefits for the wrongful death of their parent. No distinction is made under the FWDA between adopted children and biological offspring.

However, if the adoption has not been legally finalized, the child is not considered a “survivor” within the meeting of the FWDA should their pending adoptive parent die. This is true even if the adopted-to-be child lives with the adoptive parent, is fully dependent upon them, and knows no other as their parent.  Grant v. Sedco Corporation, 364 So. 2d 774 (Fla. Dist. Ct. App. 1978).

Adopted children do have biological parents.  What about the death of a biological parent after a finalized adoption?  Adopted children may not recover for the wrongful death of their biological parent because the finalized legal adoption has legally voided that parent-child relationship.  An adopted child is not considered a survivor of his or her biological parents under the Florida Wrongful Death Act.

Illegitimate children

Not every child is born to a married couple.  Many children are recognized as the offspring of their parents but are legally “born out of wedlock.”

Under Florida law, children that are born to parents who are not legally married, as marriage is defined in Florida law, are considered to be “illegitimate children”. Whether or not the illegitimate child is entitled to wrongful death benefits under the Florida Wrongful Death Act may well depend upon which parent has passed away.

If the child’s mother has died, the child born out of wedlock is considered a survivor under the wrongful death statute and is entitled to recover wrongful death damages.   Florida Statute 768.18(2).

If the child’s father has died, whether or not the child can be considered a survivor under the wrongful death statute will depend upon whether or not the biological father has admitted paternity of the child.

If the child has been acknowledged as the offspring of the father, then upon the father’s passing the child can be considered a survivor under the FWDA.  However, if the father has not acknowledged the child as his own, and failed to take any responsibility for the child’s support (emotional, financial or otherwise), then an illegitimate child will not be considered as falling within the statutory definition of “survivor” of the FWDA.  Rogers v. Truitt, 596 So. 2d 1081 (Fla. Dist. Ct. App. 1992).

Children born after their parent’s death

Sadly, there are tragic accidents where a parent dies, and an infant is born thereafter.  Upon birth, any child who is unborn at the time of her parent’s wrongful death is considered a survivor under The Florida Wrongful Death Act.  An unborn child cannot seek survivor damages under the Wrongful Death Act until they have been born and exist independently of their mother’s womb.   For instance, a stillborn fetus is not considered a survivor under the FWDA.  Larusso v. Garner, 888 So. 2d 712 (Fla. Dist. Ct. App. 2004).

3. Parents of the deceased child

Both the mother and father of a person who is been a victim of wrongful death are allowed to seek survivor damages under the Florida Wrongful Death Act.  Florida Statute 768.18.

Parents may seek wrongful death damages for children up to the age of 25 years.  The mother and father may file claims under the FWDA even if their deceased child was married at the time of death.

If a child born out of wedlock dies in a wrongful death, both biological parents may be eligible for wrongful-death damages as survivors under the Florida Wrongful Death Act. Guadalupe v. Peterson, 779 So. 2d 494 (Fla. Dist. Ct. App. 2000).

Parents of the unborn child

Unborn children who perish in a wrongful death are not within the purview of the Florida Wrongful Death Act. The FWDA by definition establishes a cause of action for wrongful death that arises only after a live birth and subsequent death of the newborn.  Stern v. Miller, 348 So. 2d 303 (Fla. 1977).

In Stern, the parents of a stillborn child who died as the result of injuries sustained in a car crash had no claim under the FWDA.  This was because there was no live birth upon which to base the wrongful death action.

4. Dependents of the Deceased

Any adult, including an adoptive brother, an adopted sister, or a non-parent blood relative, may get damages as a survivor in a wrongful death action for a decedent who had been providing financial support to them at the time of death. .  Florida Statute 768.18.

Those financially dependent upon an adult who has perished in a wrongful death may be able to seek wrongful death damages as a survivor pursuant to the FWDA. The dependency must be financial in nature.

Additionally, those financially dependent upon the decedent must have a certain relationship status with the decedent: they must be either an adopted brother or sister or a non-parent blood relative.

Dependents must establish the following to show financial dependency:

  • It must exist at the time of death;
  • There must be an actual inability to support themselves;
  • They must have a continuing need for financial support by the decedent; and
  • There must be a reasonable expectation or reasonable claim to support from the decedent.

The court may have to make a factual finding that dependency has been shown in order for the claimant to proceed in the wrongful death matter.  Guillen v. Kitching, 354 So. 2d 900 (Fla. Dist. Ct. App. 1978).

Dependency can be shown for purposes of obtaining benefits under the FWDA if the claimant is someone who looks to another for their support and relies upon this person to such an extent the claimant will not be able to sustain himself fully and completely without their continued support.

If the person seeking benefits as a dependent is healthy and perfectly able to live on their own and provide for themselves, then they cannot establish financial dependency for purposes of a claim under the Florida Wrongful Death Act. Cinghina v. Racik, 647 So. 2d 289 (Fla. Dist. Ct. App. 1994).

However, the claimant does not have to establish 100% incapacity in order to be considered “financially dependent” upon the deceased and able to claim as a survivor under the FWDA. The Act only requires someone to be partially dependent.   Partial dependency will be sufficient for someone to establish themselves as a survivor entitled to wrongful death benefits.

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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.