The Florida Wrongful Death Act: Who Can Sue, Deadlines, and What Damages It Covers
Losing someone you love is hard enough. Learning that their death could have been prevented — a distracted driver, a negligent facility, an unsafe property — adds a weight that no legal process can lift. What the law can do is provide accountability and financial stability for the people left behind. In Florida, that process is governed by a specific set of laws called the Florida Wrongful Death Act, found at Sections 768.16 through 768.26 of the Florida Statutes.
The Act answers three questions that grieving families ask us most often: Who is allowed to bring the claim? How long do we have? And what compensation does the law actually provide? This guide walks through each one, citing the statute itself, so you can understand your family’s rights before you speak with a wrongful death attorney. Nothing here is a substitute for advice about your specific situation — but knowing how the framework works can make that first conversation far less overwhelming.
What Is the Florida Wrongful Death Statute?
The Florida Wrongful Death Act (Fla. Stat. §§ 768.16–768.26) creates a civil claim when a death is caused by another party’s “wrongful act, negligence, default, or breach of contract or warranty” — and the deceased person could have filed a personal injury lawsuit had they survived (§ 768.19). In plain terms: if your loved one would have had a valid injury case, their death converts that case into a wrongful death case.
The Legislature stated its purpose right in the statute: to “shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer” (§ 768.17). The Act is remedial — courts are instructed to interpret it in favor of the families it protects.
Wrongful death claims arise from many of the same situations as personal injury claims: car, motorcycle, and pedestrian accidents; medical negligence; unsafe premises; defective products; fatal traumatic brain injuries; and fatal neglect in care settings, including nursing home abuse and neglect.
A wrongful death lawsuit is separate from any criminal case. The State may prosecute the person responsible; the civil claim belongs to the family, and it can proceed whether or not criminal charges are ever filed.
Who Can Sue for Wrongful Death in Florida?
This is where Florida differs from many states — and where families are often surprised. Under Section 768.20, only one person may file the lawsuit: the personal representative of the deceased person’s estate. Individual family members — even a spouse or child — cannot file separate suits on their own.
The personal representative (sometimes called the executor) is either the person named in the will or, if there is no will, someone appointed by the probate court — most often the surviving spouse or another close family member. The personal representative brings one action on behalf of everyone entitled to recover: the survivors and the estate. Every potential beneficiary must be identified in the complaint (§ 768.21).
Who Counts as a “Survivor” Under Section 768.18?
The people the claim is brought for are the “survivors” defined in Section 768.18:
- The surviving spouse
- Children — including a child born out of wedlock of a mother, and of a father if the father recognized a responsibility for the child’s support
- Parents of the deceased
- Blood relatives and adoptive siblings who were partly or wholly dependent on the deceased for support or services
One definition matters more than any other in this statute: for purposes of the Act, “minor children” means children under 25 years of age — not 18. That expanded definition significantly affects what damages children (and parents) can recover, as the table below shows.
What Damages Does the Florida Wrongful Death Act Cover?
Damages are set out in Section 768.21, and they are not one-size-fits-all. What each person may recover depends on their relationship to the deceased. Two categories exist side by side: damages for the survivors, and damages for the estate itself.
Who Can Recover What: Damages by Survivor Type
| Who | Damages Available | Statute |
|---|---|---|
| All survivors | Value of lost support and services from the date of injury, plus future loss of support and services reduced to present value | § 768.21(1) |
| Surviving spouse | Loss of the decedent’s companionship and protection; mental pain and suffering from the date of injury | § 768.21(2) |
| Minor children (under 25) — and all children if there is no surviving spouse | Lost parental companionship, instruction, and guidance; mental pain and suffering from the date of injury | § 768.21(3) |
| Parents of a deceased minor child | Mental pain and suffering from the date of injury | § 768.21(4) |
| Parents of a deceased adult child | Mental pain and suffering — but only if there are no other survivors | § 768.21(4) |
| Any survivor who paid them | Medical or funeral expenses due to the injury or death | § 768.21(5) |
| The estate (through the personal representative) | Lost earnings from injury to death; loss of prospective “net accumulations” the decedent would likely have saved and left behind; medical and funeral expenses charged to the estate | § 768.21(6) |
A few points families should know about this framework:
- “Support” and “services” are broad. Support includes contributions in kind, not just money. Services means the everyday tasks — child care, household work, caregiving — the person regularly performed for the family (§ 768.18(3)–(4)).
- “Net accumulations” are the savings the deceased would probably have built and left as part of their estate over a normal life expectancy. This can be a substantial component when a working parent or spouse dies.
- Punitive damages may also be available in cases involving gross negligence or intentional misconduct, subject to Florida’s separate punitive damages rules.
The Medical Malpractice Exception Families Should Know About
Section 768.21(8) contains a carve-out with painful consequences for some families: in claims for medical negligence, adult children (25 and older) cannot recover damages for lost parental companionship and mental pain and suffering, and parents of an adult child cannot recover for mental pain and suffering. Critics call this Florida’s “free kill” law, because when a single adult with no minor children dies from medical negligence, no one may be eligible to recover these non-economic damages at all.
Florida lawmakers have repeatedly filed bills to repeal this exception in recent legislative sessions, and repeal passed the Florida House in 2025 before stalling in the Senate. As of this writing, however, the exception remains the law under the current Florida Statutes. Because this area may change, it is especially important to have a lawyer evaluate a potential medical negligence death claim promptly — economic damages and estate damages may still be recoverable even where subsection (8) applies.
The Deadline: Florida’s Two-Year Wrongful Death Statute of Limitations
Under Section 95.11(5)(e), a wrongful death action must generally be filed within two years of the date of death. This deadline is unforgiving: with limited exceptions, a claim filed after two years will be dismissed no matter how strong it is. For every deadline scenario — including the exceptions that shorten or eliminate it — see our full guide to the Florida wrongful death statute of limitations.
A note on recent law changes, because there is confusion online: Florida’s 2023 tort reform law (HB 837) shortened the deadline for general negligence injury cases from four years to two. It did not change the wrongful death deadline — wrongful death has always carried a two-year limit in Florida. The statute was simply renumbered, which is why older articles cite § 95.11(4)(d) and current law places it at § 95.11(5)(e). You can read more about how these deadlines interact in our guide to the Florida personal injury statute of limitations.
Important exceptions and wrinkles:
- Murder and manslaughter. Under § 95.11(11), a wrongful death action against the individual responsible for a death resulting from acts constituting murder or manslaughter may be filed at any time — no arrest, charge, or conviction is required.
- Medical malpractice deaths follow the separate medical malpractice limitations rules and mandatory presuit investigation process, which add their own strict timelines.
- Claims against government entities involve additional notice requirements and waiting periods before suit can be filed.
Beyond the legal deadline, there is a practical one: evidence disappears. Crash scenes are cleared, surveillance footage is overwritten, and witnesses’ memories fade. Families who involve a wrongful death lawyer early give their case its best foundation.
Wrongful Death vs. Survival Action: An Important Distinction
Florida handles fatal injury cases differently than many states, and Section 768.20 is the reason. When a personal injury results in death, the injured person’s own claim does not “survive” — it abates, and the Wrongful Death Act becomes the exclusive remedy. That means the damages are the survivors’ and the estate’s losses described above, rather than the deceased person’s own pain and suffering.
A traditional survival action — where the estate pursues the deceased person’s own injury claim, including their pre-death pain and suffering — is available in Florida only when the death was caused by something other than the injury being sued over (for example, a person injured in a crash who later dies of an unrelated illness). Determining which claim applies, and what that means for your family’s recovery, is one of the first questions an attorney will analyze.
How Wrongful Death Cases Work in St. Petersburg
Most Pinellas County wrongful death claims begin with two parallel steps: opening an estate in the probate court so a personal representative can be appointed, and investigating the death itself — obtaining the crash or incident report, medical records, and available physical evidence. The claim is then pursued against the at-fault party and, in most cases, their insurance carriers. Many cases resolve through negotiated settlement; when a fair settlement isn’t offered, the case proceeds to litigation in circuit court.
When a settlement or verdict is reached, the proceeds are allocated among the survivors and the estate. Where survivors’ interests differ — for example, a surviving spouse and children from a prior marriage — the court ensures the distribution fairly reflects each person’s losses under the statute. An experienced attorney helps the family navigate these allocations with as little added conflict as possible.
Sharon P. Jorgensen has represented injured people and their families in St. Petersburg since founding Jorgensen Law, P.A., and has been a member of The Florida Bar since 1985. Our firm handles wrongful death claims arising from car and motorcycle accidents, unsafe premises, fatal nursing home neglect, and other preventable tragedies throughout Pinellas County.
FAQs
Who can file a wrongful death lawsuit in Florida?
Only the personal representative of the deceased person’s estate can file the lawsuit (Fla. Stat. § 768.20). The personal representative — named in the will or appointed by the probate court — brings one claim on behalf of all eligible survivors and the estate. Individual family members cannot file separate wrongful death suits.
Who counts as a “survivor” under the Florida Wrongful Death Act?
Survivors include the surviving spouse, children, parents, and any blood relatives or adoptive siblings who were partly or wholly dependent on the deceased for support or services (Fla. Stat. § 768.18). A child born out of wedlock is a survivor of their mother automatically, and of their father if he recognized a responsibility for the child’s support.
How long do you have to file a wrongful death claim in Florida?
Generally, two years from the date of death (Fla. Stat. § 95.11(5)(e)). Exceptions exist: there is no time limit for wrongful death claims against a person whose acts constituted murder or manslaughter, and medical malpractice and government-defendant cases follow their own special timing rules. Missing the deadline almost always ends the claim permanently.
Why does Florida treat children under 25 as “minor children” in wrongful death cases?
The Act defines “minor children” as children under 25, notwithstanding the ordinary age of majority (Fla. Stat. § 768.18(2)). This matters because minor children can recover for lost parental companionship, instruction, guidance, and mental pain and suffering — and parents of a child under 25 who dies can recover for their own mental pain and suffering.
Can adult children recover damages for a parent’s wrongful death in Florida?
Yes, in most cases. All children — regardless of age — can recover lost support and services, and if there is no surviving spouse, adult children can also recover for lost parental companionship and mental pain and suffering. The major exception is medical negligence cases, where Fla. Stat. § 768.21(8) currently bars adult children from recovering those non-economic damages.
What is Florida’s “free kill” law?
“Free kill” is the informal name critics use for Fla. Stat. § 768.21(8), which bars adult children (25 and older) and parents of adult children from recovering mental pain-and-suffering damages in wrongful death cases based on medical negligence. Repeal efforts have advanced in the Legislature in recent sessions — including a repeal bill that passed the Florida House in 2025 — but the provision remains law as of this writing.
What is the difference between a wrongful death claim and a survival action in Florida?
In a wrongful death claim, the damages belong to the survivors and the estate — their lost support, companionship, and mental pain and suffering. Under Fla. Stat. § 768.20, when an injury causes death, the deceased person’s own injury claim abates and wrongful death is the exclusive remedy. A survival action, by contrast, pursues the deceased’s own claim and applies only when death resulted from a cause unrelated to the injury.
How are wrongful death settlement proceeds divided among family members?
The personal representative recovers all damages in one action, and each survivor’s share is based on their own statutory damages — for example, a spouse’s loss of companionship or a minor child’s loss of parental guidance. When survivors disagree, or when minors are involved, the court oversees the allocation to ensure it fairly reflects each person’s losses under § 768.21.
If your family has lost a loved one because of someone else’s negligence in St. Petersburg or anywhere in the Tampa Bay area, we invite you to speak with us — with compassion, and without obligation. Contact Jorgensen Law, P.A. for a free, confidential consultation about your family’s rights under the Florida Wrongful Death Act.
