Wrongful Death · Florida Law

Who Can File a Wrongful Death Lawsuit in Florida?

Florida’s Wrongful Death Act decides who can file a wrongful death lawsuit, which family members can recover, and what losses each one can claim. Here’s how it works, explained plainly.

Written by the Hughes & Barnard Law Firm, P.A. marketing team·Prepared for review by Attorney Howard M. Hughes·Attorney review pending·9 min read

Two adults holding hands at a table as a family copes with a wrongful death — AI-generated illustrative image. People shown are not clients.

The short answer

In Florida, only the personal representative of the deceased person’s estate can file a wrongful death lawsuit. Family members don’t file separate lawsuits. Instead, under section 768.20 of the Florida Statutes, the personal representative brings one action for the benefit of the estate and the surviving family members the law recognizes, who can include a spouse, children, parents, and certain dependent relatives.

The probate court appoints the personal representative, usually giving first preference to the person named in the will.
What each family member can recover depends on their relationship to the person who died.
The deadline to file is generally two years from the date of death.

In this article

Who can file a wrongful death lawsuit: the personal representative
Who counts as a “survivor”
What each survivor can recover
What the estate can recover
The medical malpractice exception
The deadline to file a wrongful death lawsuit
A wrongful death lawsuit is separate from any criminal case
First steps for families
Frequently asked questions

Who can file a wrongful death lawsuit: the personal representative

Florida’s Wrongful Death Act channels the claim through a single person: the personal representative of the estate. That person files the lawsuit, but the recovery doesn’t belong to them personally. They act for everyone the law treats as a “survivor” and for the estate itself. The complaint has to identify every potential beneficiary, including the estate, and describe each one’s relationship to the person who died.

The probate court appoints the personal representative. If there’s a will, the person it names usually gets first preference; if there’s no will, or that person can’t or won’t serve, the court appoints someone else. Under section 733.301, when there’s no will, the court gives preference first to the surviving spouse, then to a person selected by a majority in interest of the heirs, and then to the heir nearest in degree. Someone who lives outside Florida can serve only if they’re related to the person who died in one of the ways the probate code lists, such as a child, parent, spouse, or sibling.

Families sometimes need to open a probate estate specifically so someone has legal authority to bring the wrongful death claim.

Why one case instead of many

Requiring a single action avoids competing lawsuits by different relatives against the same defendant. Each survivor’s losses are still presented and valued individually within that one case.

Who counts as a “survivor”

Under section 768.18, survivors are:

The spouse of the person who died
The children of the person who died
The parents of the person who died
Any blood relatives and adoptive brothers and sisters who were partly or wholly dependent on the person for support or services

Two other rules in the same section matter a great deal. First, “minor children” means children under 25, not under 18, which affects who can recover certain damages. Second, a child born outside of marriage is a survivor of the mother, and of the father only if the father recognized a responsibility for the child’s support.

Some people who were close to the person who died aren’t survivors under the Act. A partner or fiancé who wasn’t legally married to them generally doesn’t qualify, even if they lived together, because the dependent-relative category covers only blood relatives and adoptive siblings.

What each survivor can recover

The Act lists damages by relationship in section 768.21. Some damages are available to every survivor; others depend on the family relationship.

Summary of section 768.21. The medical negligence limits described below can change this.
Who	What they may recover
Each survivor	Lost support and services from the date of injury to the date of death, with interest, plus future lost support and services reduced to present value
Surviving spouse	Loss of companionship and protection, and mental pain and suffering from the date of injury
Minor children (under 25)	Lost parental companionship, instruction, and guidance, and mental pain and suffering from the date of injury
Adult children (25 and older)	The same damages as minor children, but only if there’s no surviving spouse
Parents of a deceased minor child (under 25)	Mental pain and suffering from the date of injury
Parents of a deceased adult child (25 and older)	Mental pain and suffering, but only if there are no other survivors
A survivor who paid medical or funeral bills	Those medical or funeral expenses

A verdict states each survivor’s award and the estate’s award separately. While a lawsuit is pending, a settlement that any survivor objects to, or that affects a survivor who is a minor or legally incapacitated, needs court approval.

In valuing lost support and services, the law allows consideration of the survivor’s relationship to the person who died, how much of the person’s probable net income would have gone to that survivor, and the replacement value of the services the person who died provided to that survivor. Dependent relatives such as a sibling or grandparent can recover lost support and services, but the Act doesn’t give them a claim for their own pain and suffering.

One lawsuit, different beneficiaries

The personal representative files

The probate court appoints the person with authority to bring the action.

The estate

The estate may also recover specified financial losses under the Wrongful Death Act.

Eligible survivors

A spouse, children, parents and certain dependent relatives may recover different losses.

Each beneficiary’s losses are valued separately. Family relationship, dependency and the medical-negligence exception affect available damages.

What the estate can recover

The personal representative also recovers certain losses for the estate itself:

Lost earnings from the date of injury to the date of death, minus the support the survivors lost, with interest
Medical or funeral expenses charged to the estate or paid by or for the person who died, unless a survivor recovers them
Prospective net accumulations, meaning the savings the person would likely have left in their estate if they had lived a normal life expectancy

The estate can recover net accumulations in two situations: when the survivors include a spouse or lineal descendants, such as children or grandchildren, or when the person who died was 25 or older, no survivor can recover lost support and services, and a parent survives them. Damages awarded to the estate are subject to creditors’ claims made under Florida probate law. Families also ask how taxes apply to a recovery; our guide on whether wrongful death settlements are taxable in Florida explains the federal rules.

The medical malpractice exception

One exception has drawn a lot of attention. When a death results from medical negligence, section 768.21(8) doesn’t allow adult children to recover for lost parental companionship, instruction, and guidance or for their mental pain and suffering, and it doesn’t allow the parents of an adult child to recover for their mental pain and suffering. Here, “adult” means 25 or older, because of how the Act defines minor children. The exception doesn’t apply to death claims brought under Florida’s nursing home and assisted living facility resident-rights laws.

Lawmakers have tried to repeal this rule. The Legislature passed a repeal in 2025, but the Governor vetoed it, and repeal bills filed in the 2026 session died in the Senate. As of the 2026 Florida Statutes, the exception remains in effect. It doesn’t affect other survivors, such as a surviving spouse or minor children.

The deadline to file a wrongful death lawsuit

The personal representative generally has two years to file a Florida wrongful death lawsuit, under section 95.11(5)(e), and the period runs from the date of death. A few situations follow different rules:

Medical malpractice deaths follow the medical malpractice deadline, which has its own discovery and outer-limit rules.
Claims against a Florida state or local government entity have special notice and waiting-period rules under section 768.28. For wrongful death, written notice must go to the agency involved and, within two years after the claim accrues, to the Department of Financial Services. The wrongful-death clause doesn’t repeat the general exemption from that notice for municipalities, counties and the Florida Space Authority, so notify both. Suit generally can’t be filed until the claim is denied in writing or 90 days pass without a final decision, and the limitations period is tolled during that review. Have counsel calculate these dates. Federal-agency claims follow separate federal rules.
Deaths caused by an intentional act described in Florida’s murder or manslaughter statutes: the personal representative can bring a wrongful death claim against the individual who committed the act at any time, and the claim doesn’t require an arrest, charge, or conviction. Claims against anyone else, such as a business, and deaths caused by negligence, including a typical DUI crash, still follow the two-year deadline.

Because the probate court may need to appoint a personal representative first, families should start the process well before the deadline.

Free consultation

Lost someone because of another person’s negligence?

We’ll explain who can bring the claim, what the family can recover, and what needs to happen first. The consultation is free and confidential.

No obligation · Se habla español · Home and hospital visits available

A wrongful death lawsuit is separate from any criminal case

If the death involved a crime, such as a DUI or hit-and-run, prosecutors may bring charges, but that case belongs to the state. Florida’s Wrongful Death Act applies even when the circumstances that caused the death amount to a felony. The wrongful death claim is a civil case that the personal representative brings on the family’s behalf to recover compensation. The two run separately, use different standards of proof, and one doesn’t have to finish before the other begins. The wrongful death deadline keeps running while a criminal case is pending, so families shouldn’t wait for the criminal case to end before acting.

First steps for families

Get several certified copies of the death certificate. You’ll need them for the estate and the claim.
Find the will, if there is one. It usually names the person with first preference to serve as personal representative.
Don’t sign releases or give statements to an insurance company before you understand the claim.
Keep records of medical bills, funeral expenses, and the income and benefits of the person who died.
Preserve evidence, including photos, messages, and the names of witnesses.
Talk with a lawyer early, especially if no one has opened probate yet.

Our Port St. Lucie wrongful death attorneys can explain how these steps apply to your family.

Frequently asked questions

Can a family member file a wrongful death lawsuit on their own?

Not directly. Florida requires the personal representative of the estate to file, on behalf of the estate and all survivors. A family member can serve as personal representative once the probate court appoints them; a person named in the will usually gets first preference.

Who is the personal representative if there’s no will?

The probate court appoints one. Florida gives preference first to the surviving spouse, then to a person selected by a majority in interest of the heirs, and then to the heir nearest in degree.

Can adult children recover in a Florida wrongful death lawsuit?

Sometimes. Children 25 and older can recover for lost parental companionship and their own pain and suffering only if there’s no surviving spouse, and not when the death resulted from medical negligence. Like any survivor, they can also recover lost support and services if they received them.

Can a girlfriend, boyfriend, or fiancé recover?

Generally, no. The Act’s list of survivors includes a spouse but not an unmarried partner, and the category for dependents covers only blood relatives and adoptive siblings.

Can grandparents or siblings recover?

Only if they were partly or wholly dependent on the person who died for support or services. If they qualify, they can recover the value of that lost support and those services.

Does the family need to open a probate estate?

Yes, unless an estate is already open and the court has appointed a personal representative. The personal representative needs legal authority from the probate court to bring the claim.

How long does a family have to file a wrongful death lawsuit in Florida?

Generally two years from the date of death. Medical malpractice deaths and claims against government entities have additional rules, so it’s best to confirm the deadline early.

Sources and further reading

section 768.20 of the Florida Statutes

Hughes and Barnard Law Firm, PA

Meet the Attorneys

Our attorneys draw on backgrounds defending insurers, hospitals and physicians to represent injured people and families.

Managing Partner

Howard M. Hughes

Howard brings experience as an insurance adjuster and insurance-defense attorney to his work representing injured people. A member of The Florida Bar since 1995, he handles personal injury, wrongful death and premises liability matters.

Read full profile

Partner

Cameron Barnard

Cameron began his legal career defending hospitals, doctors and insurance companies. He now represents injured individuals and families in catastrophic injury, wrongful death and other complex cases, including medical malpractice and nursing home abuse.

Read full profile

Serving Port St. Lucie, Jupiter and surrounding communities.

This article provides general information about Florida law. It is not legal advice, and reading it does not create an attorney-client relationship. Every case depends on its own facts, and laws change, so speak with a lawyer about your situation. Prepared October 21, 2026. Attorney review is pending; confirm the law and deadlines for your situation.