In Florida, a wrongful death claim after a fatal car accident is filed by the personal representative of the deceased person’s estate, not by family members individually. The personal representative brings a single claim on behalf of the surviving family and the estate. Who the survivors are, and what they can recover, is set by the Florida Wrongful Death Act.
Losing someone in a crash is devastating, and the legal rules can feel confusing and cold on top of the grief. Here is who can file, who benefits, and what the claim can recover, in plain terms.
Contact the Miami wrongful death attorneys at Lipcon & Lipcon, P.A. for a free consultation, or call (305) 670-6144. We can guide your family through the process with care.
Who actually files the claim?
Florida law requires the claim to be filed by one person: the personal representative of the estate. Under § 768.20, the action is brought by the personal representative, who recovers for the benefit of the survivors and the estate. This is different from what many people expect, which is that each grieving family member files a case of their own. Instead, Florida channels everything through a single representative and a single lawsuit brought on everyone’s behalf.
The personal representative is often named in the deceased person’s will or estate plan. If there is no will, or none names a representative, the court appoints one, frequently a surviving spouse or an adult child of the person who died. The appointment is handled through a probate process that a lawyer can help move along. The representative has a duty to act in the interest of all the survivors, not just themselves, when pursuing and settling the claim.
Who are the survivors the claim is brought for?
Even though one person files, the claim is brought for the benefit of the statutory survivors. Under § 768.18, survivors can include:
- The surviving spouse. The legal husband or wife of the person who died.
- Children. Including minor children, and adult children in certain circumstances such as when there is no surviving spouse.
- Parents. The natural or adoptive parents of the person who has died.
- Dependent blood relatives and adoptive siblings. Those who were partly or wholly dependent on the deceased for support or services.
Which survivors can recover, and for what, depends on their relationship to the person who died and on the specific facts of the family, which is one of the more nuanced parts of these cases and a common source of confusion.
Why does Florida use a single representative?
The single-representative structure keeps a fatal-accident claim from fracturing into multiple competing lawsuits. Rather than a spouse, several children, and two parents each filing separately, the law consolidates their interests into one action, then apportions any recovery among them at the end of the case. The approach is meant to be efficient and to avoid inconsistent results, though it also means the survivors need to be identified correctly and completely at the outset, because they are all represented by that single filing and share in any recovery.
What must you prove in a fatal car accident case?
A wrongful death claim from a car accident rests on the same negligence principles as any crash case, with the added element that the crash caused a death. The four core elements are:
- Duty. The other driver owed a legal duty to drive with reasonable care.
- Breach. The driver breached that duty by speeding, running a light, driving impaired, or otherwise.
- Causation. The breach directly caused the crash and the resulting death.
- Damages. The death caused real losses the survivors and estate are now claiming.
Proving these takes the same crash evidence as any serious car accident case, including the police report, scene evidence, witness accounts, vehicle data, and often expert accident reconstruction.
What if there is no surviving spouse or minor children?
The answer depends on who survives, and Florida law sets an order. When there is no surviving spouse, the deceased person’s children, including adult children, can recover for lost parental companionship, guidance, and protection, along with their own mental pain and suffering. When an adult child dies and leaves no spouse or children of their own, each surviving parent can recover for their own mental pain and suffering. These specific rules under § 768.21 mean the surviving family members who are eligible to recover can shift depending on the family structure, which is one more reason to have the survivors identified carefully at the start.
What damages can survivors recover?
The Wrongful Death Act separates what survivors recover from what the estate recovers. Under § 768.21, survivors may recover for the value of lost support and services, and depending on the survivor, lost companionship, guidance, and protection, along with their own mental pain and suffering from the loss. A spouse, minor children, and in some cases a parent are the survivors most often eligible for these non-economic losses.
The estate, meanwhile, can recover losses that belong to the estate itself, such as lost earnings the deceased would have accumulated, the loss of net accumulations the deceased would have left behind, and the medical and funeral expenses paid because of the injury and death. Together, the two categories are meant to address both the family’s human loss and the financial harm the death caused to the estate.
What damages does the estate recover?
The estate’s recovery focuses on economic losses tied to the deceased person rather than the survivors’ grief. These commonly include the earnings and the net accumulations lost to the estate because of the untimely death, and the medical and funeral expenses that resulted from the injury and death when those were paid by the estate rather than a survivor. Keeping these two categories separate matters, because it affects who receives which part of any recovery and how it is ultimately distributed among the survivors and the estate.
What should a family do after a fatal crash?
In the immediate aftermath there is little a grieving family needs to do about the legal claim, and that is by design. The most useful early steps are practical: keep the police crash report and any records the hospital or medical examiner provides, hold on to the deceased person’s will and estate documents if any exist, and avoid giving a recorded statement to the at-fault driver’s insurance company. Those insurers may reach out quickly, sometimes within days, and an early statement or a fast settlement offer rarely reflects the true value of what the family has lost. There is no obligation to engage with them directly, and it is usually better to let a representative and counsel handle that contact.
Can you recover if your loved one was partly at fault?
Often yes, though the recovery is reduced. Florida follows a modified comparative negligence rule under § 768.81. If the person who died was partly to blame for the crash, the damages are reduced by their share of fault, and if they were found more than 50 percent at fault, the claim is barred entirely. This is why the defense in a fatal crash case often tries to shift blame onto the person who died, and why building a clear liability case is so important to the outcome.
How long do you have to file?
A wrongful death claim generally must be filed within two years of the date of death. That limitations period comes from § 95.11(4), and while grief makes any legal deadline feel impossibly soon, missing it usually ends the claim regardless of how strong its merits are. Because a personal representative often needs to be appointed first, and evidence is best gathered while it is fresh, reaching out early gives the case the room it needs to be built properly and filed on time.
Talk to a Miami wrongful death lawyer
Lipcon & Lipcon, P.A. has represented grieving families across Miami and South Florida since 1993. Founding partner David W. Lipcon has practiced law in Florida since 1992 and handles wrongful death claims from fatal car accidents throughout Miami-Dade. If your family lost someone in a crash, contact our Miami office for a free consultation or call (305) 670-6144. You can also review our wrongful death practice and our car accident page.
Frequently Asked Questions
Who can file a wrongful death claim in Florida?
The personal representative of the deceased person’s estate files the claim, on behalf of the surviving family members and the estate under § 768.20.
Who counts as a survivor in a Florida wrongful death case?
Survivors include the spouse, children, and parents, plus any blood relative or adoptive sibling who was partly or wholly dependent on the deceased for support or services.
Can family members file the claim directly?
No. Florida channels the claim through one personal representative, who brings a single action for the benefit of all survivors and the estate, not separate family suits.
What damages are available in a fatal car accident claim?
Survivors may recover lost support and services, lost companionship, and mental pain and suffering, while the estate may recover lost earnings and medical and funeral costs.
How long do you have to file after a fatal crash in Florida?
Generally two years from the date of death under § 95.11(4), the wrongful death limitations period. Missing that deadline usually ends the claim.
For more on these claims, visit our Miami wrongful death lawyer page.
