What damages can you recover in a Florida wrongful death claim?
By: David W. Lipcon, Esq.
A Florida wrongful death claim can recover two kinds of damages: those that belong to the surviving family members and those that belong to the deceased person’s estate. Survivors can recover for losses like lost support, lost companionship, and mental pain and suffering, while the estate can recover for lost earnings, lost future accumulations, and medical and funeral expenses.
How much each family recovers depends on who the survivors are and their relationship to the person who died. Here is how Florida law divides these damages.
Contact the Miami wrongful death attorneys at Lipcon & Lipcon, P.A. for a free consultation, or call (305) 670-6144. We can explain what your family may be entitled to recover under Florida law.
What is the Florida Wrongful Death Act?
Florida wrongful death claims are governed by the Florida Wrongful Death Act, found at §§ 768.16 through 768.26. The Act defines who can bring a claim, who counts as a survivor, and what damages are available to each person. Its rules are specific, and they sometimes produce results that surprise grieving families, so understanding the framework early matters. The Act is the exclusive path to recovery for a death caused by negligence in Florida.
What kinds of accidents lead to wrongful death claims?
A wrongful death claim can arise from almost any fatal accident caused by another party’s negligence. Common examples include fatal car, truck, and motorcycle crashes, pedestrian and bicycle accidents, nursing home neglect, dangerous property conditions and negligent security, and defective products. The underlying question is the same in each: would the deceased have had a personal injury claim had they survived? If so, the family generally has a wrongful death claim.
Who can file the claim?
Only one person can file. Under § 768.20, the personal representative of the deceased person’s estate brings the wrongful death lawsuit. Individual family members cannot file their own separate claims. The personal representative files a single action on behalf of all eligible survivors and the estate, and any recovery is then allocated among them. This single-claim rule keeps the family from filing competing lawsuits over the same death.
Who counts as a survivor?
The Act defines survivors carefully in § 768.18. Survivors can include the surviving spouse, children, and parents, and, when there are no other survivors, blood relatives or adoptive siblings who depended on the deceased for support. For certain damages, the Act treats a child under 25 as a minor child, which is broader than Florida’s usual age of majority. Who qualifies as a survivor drives everything that follows, because it determines which damage categories are even available.
How do you prove a wrongful death claim?
Proving a wrongful death claim uses the same building blocks as any negligence case. The family must show that the responsible party owed a duty of care, that it breached that duty, that the breach caused the death, and that the death produced the damages being claimed. The evidence often includes accident reports, medical and autopsy records, witness accounts, and expert testimony, all assembled to connect the negligence to the loss. The same conduct that would have supported an injury claim supports the wrongful death claim once the injury proves fatal.
What damages can survivors recover?
Under § 768.21, the damages available to each survivor depend on their relationship to the deceased:
- All survivors: the value of lost support and services the deceased provided, past and future.
- A surviving spouse: loss of companionship and protection, plus mental pain and suffering.
- Children: lost parental companionship, instruction, and guidance, plus mental pain and suffering.
- Parents of a deceased minor child: mental pain and suffering.
- Any survivor: medical or funeral expenses the survivor paid for the deceased.
Children can recover the companionship and mental-pain damages when they are minor children, or when there is no surviving spouse.
What damages can the estate recover?
The estate has its own separate categories of damages, recovered by the personal representative. They include:
- Lost earnings: the earnings the deceased lost from the date of injury to the date of death.
- Lost net accumulations: the value the estate would have accumulated but for the death, reduced to present value.
- Medical and funeral expenses: those charged against the estate, when not already claimed by a survivor.
These estate damages recognize the financial future the death cut short, separate from the personal losses the survivors suffered. In cases where the deceased was a primary earner, the lost net accumulations can be one of the largest parts of the claim.
How is the recovery divided among survivors?
Because the personal representative files a single claim for everyone, any recovery has to be divided among the survivors and the estate. The allocation reflects each survivor’s own losses, such as a spouse’s loss of companionship or a child’s loss of guidance, and the estate’s separate categories. When survivors are minors or the division is disputed, a court reviews and approves how the recovery is apportioned, which is one more reason these cases benefit from careful handling. A clear allocation up front can also prevent conflict among family members later.
What is the difference between survivor and estate damages?
The two buckets are treated very differently. Survivor damages belong to the individual family members for their own losses. Estate damages belong to the estate, and under § 768.21(7), estate awards can be reached by the deceased person’s creditors, while damages awarded directly to survivors generally cannot. That distinction can matter a great deal when the deceased left significant debt.
How are non-economic damages valued?
Some of the most significant damages in these cases are non-economic, like mental pain and suffering and the loss of a parent’s or spouse’s companionship. There is no formula for these losses. A jury weighs the closeness of the relationship, the age of those left behind, and the nature of the loss, which makes clear presentation of the family’s story an important part of the case. Two families with similar financial losses can receive very different awards depending on how these human losses are shown.
Does it matter if the deceased was a minor or an adult?
Yes, especially for parents. Parents of a deceased minor child can recover for their own mental pain and suffering. Parents of a deceased adult child, however, can recover those damages only if there are no other survivors, such as a spouse or children. Because the Act treats a child under 25 as a minor for these purposes, the age of the person who died can change which family members recover and how much. This is one of the details that most surprises families, so it is worth clarifying early.
Are there limits in medical malpractice cases?
There is one notable limit worth mentioning. Under § 768.21(8), when a death results from medical malpractice, adult children and the parents of an adult child cannot recover for lost companionship or mental pain and suffering. This limitation applies only in the medical malpractice context and has been the subject of ongoing debate in the Legislature. For most wrongful death claims outside that setting, the full range of survivor damages remains available.
What if the deceased had a personal injury case pending?
If the person who died had already filed a personal injury lawsuit for the same incident, that case does not simply continue. Under the Wrongful Death Act, a pending personal injury claim ends when the injury results in death and is replaced by the wrongful death claim brought by the personal representative. The family does not lose the right to recover; the claim simply changes form. Any evidence already gathered in the injury case usually carries straight over.
How long do you have to file a claim in Florida?
Generally two years from the date of death. Under § 95.11(4), a wrongful death action must usually be filed within two years, and the estate must be opened and a personal representative appointed before suit can be brought. Because those steps take time, it helps to begin well before the deadline.
Talk to a Miami wrongful death lawyer
Lipcon & Lipcon, P.A. has represented 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 throughout Miami-Dade. If your family lost a loved one because of someone else’s negligence, contact our Miami office for a free consultation or call (305) 670-6144.
Frequently Asked Questions
What damages can you recover in a Florida wrongful death claim?
Two kinds: survivor damages, such as lost support, companionship, and mental pain and suffering, and estate damages, such as lost earnings, net accumulations, and medical and funeral expenses.
Who can file a wrongful death claim in Florida?
Only the personal representative of the estate, under § 768.20. That person files one claim on behalf of all eligible survivors and the estate.
What is the difference between survivor and estate damages?
Survivor damages go to family members for their own losses. Estate damages belong to the estate and, unlike survivor awards, can be reached by the deceased person’s creditors.
Can parents recover for a child’s wrongful death in Florida?
Yes. Parents of a deceased minor child can recover for mental pain and suffering. Parents of an adult child can recover only if there are no other survivors.
How long do you have to file a wrongful death claim in Florida?
Generally two years from the date of death under § 95.11(4). Missing the deadline usually bars the claim entirely.
For more on these claims, visit our Miami wrongful death lawyer page.