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Wrongful Death Representation

Miami Wrongful DeathAttorney

Florida Wrongful Death Act representation under Chapter 768 for families pursuing claims after fatal injuries caused by negligence, dangerous conditions, or wrongful conduct. Plaintiff and defense representation across South Florida.

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Florida wrongful death claims must be filed by the personal representative. Under Fla. Stat. § 768.20, only the appointed PR of the decedent's estate can bring the claim. Probate must be opened to establish the estate before suit can be filed.
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35+
Years of Practice
Florida Bar member since 1989
1989
Florida Bar Licensed
University of Miami School of Law
State & Federal
Court Admission
SDFL (1991), MDFL (2001)
Boutique
Practice Model
Direct attorney involvement
Three Layers of Wrongful Death Cases

How Wrongful Death Cases Are Built

Florida wrongful death claims operate under the Florida Wrongful Death Act, Fla. Stat. §§ 768.16 to 768.26. The framework is different from ordinary personal injury matters: only certain people can pursue the claim, the damages are categorized differently, and the procedural steps include both probate court and civil court coordination. Each layer requires careful handling.

01

Personal Representative & Estate

Only the personal representative of the decedent's estate can file the claim under Fla. Stat. § 768.20. Probate court must appoint the PR before the wrongful death lawsuit can proceed.

02

Survivors & Damages

Florida law defines survivors entitled to damages under Fla. Stat. § 768.18: spouse, children, parents, and certain blood relatives dependent on the decedent. Each category recovers different damages.

03

Liability & Causation

The case must establish that the wrongful conduct caused the death. Negligence, intentional conduct, product defect, medical malpractice, and other theories all may apply depending on the circumstances.

Three Florida Frameworks

Three Statutes That Define These Cases

Florida wrongful death claims are governed by three statutory frameworks. Each affects standing, timing, and damages in a different way. Understanding all three at the outset shapes the case.

2
Years / Statute of Limitations

Wrongful Death SOL

Florida wrongful death claims must be filed within 2 years of the date of death under Fla. Stat. § 95.11(4)(d). The clock runs from the date of death, not the date of the injury.

§
Wrongful Death Act

FS 768.16-768.26

The Florida Wrongful Death Act defines who can sue, who can recover, and what damages are available. The PR files the suit; the Act controls the rest.

§
Survivor Categories

FS 768.18 & 768.21

Survivors include spouse, children, parents, and certain blood relatives. Damages categories vary by relationship to the decedent and dependency status.

Plaintiff & Defense Representation

Both Sides of Wrongful Death Litigation

The firm represents both families pursuing wrongful death claims and businesses, drivers, property owners, or insureds defending claims. The strategy is different on each side, but the underlying preparation and discipline is the same.

Pursuing a Claim

Plaintiff Representation

  • Probate coordination and personal representative appointment
  • Survivor identification under Fla. Stat. § 768.18
  • Liability development and defendant identification
  • Estate damages and survivor damages preparation
  • Coverage analysis including all available policies
  • Settlement allocation and court approval where required
Defending a Claim

Defense Representation

  • Standing challenges and survivor eligibility analysis
  • Liability defense under HB 837 50% comparative bar
  • Causation defense and pre-existing condition analysis
  • Damages challenges including survivor relationship proof
  • Settlement evaluation and offer of judgment strategy
  • Trial defense and post-judgment positioning
Florida Damages Categories

Available Damages

The Florida Wrongful Death Act allocates damages between the estate and the surviving family members. Each category has its own proof requirements and statutory basis.

Damages Category
Recovered By
What It Covers
Lost Earnings & Net AccumulationsEstate Recovery
The Estate
The decedent's lost earnings from the date of injury until death, less personal expenses, plus the loss of net accumulations the decedent would have left to survivors. Recovered under Fla. Stat. § 768.21(6).
Medical & Funeral ExpensesEstate Recovery
The Estate
Medical expenses for the final injury and funeral expenses paid by the estate or by survivors. Recovered under Fla. Stat. § 768.21(5).
Loss of Support & ServicesSurvivor Recovery
Spouse / Children
The value of the support and services the decedent provided to surviving spouse and children. Calculated based on income, household contributions, and life expectancy. Under Fla. Stat. § 768.21(1).
Loss of Companionship & ProtectionSpouse Recovery
Surviving Spouse
The surviving spouse's loss of the decedent's companionship and protection. Plus mental pain and suffering from date of injury. Under Fla. Stat. § 768.21(2).
Lost Parental CompanionshipChildren Recovery
Minor Children
Loss of parental companionship, instruction, and guidance for minor children, plus mental pain and suffering. Under Fla. Stat. § 768.21(3).
Parents of Deceased ChildParent Recovery
Parents
Mental pain and suffering of parents from the date of injury when the decedent is a minor child, or in some cases an adult child without survivors. Under Fla. Stat. § 768.21(4).
Med-Mal Adult Child ExceptionLimit Applies
Variable
In medical malpractice wrongful death cases, parents of adult children 25 and older are barred from recovery, and adult children of decedent without spouse are also barred under Fla. Stat. § 768.21(8).
Comparative NegligenceHB 837
Trial / Settlement
Florida is a modified comparative negligence state. The decedent's percentage of fault reduces recovery proportionally. A finding of more than 50% decedent fault bars the wrongful death recovery entirely.

Summary of Florida wrongful death damages framework. Not legal advice. Specific availability depends on the decedent's family structure, the cause of death, the comparative negligence findings, and other factors. Settlements typically require court allocation among the estate and surviving family members.

Case Approach

How a Wrongful Death Case Gets Built

Wrongful death cases require careful coordination between probate court, civil court, and the family of the decedent. The work is procedurally heavier than an ordinary personal injury matter and the cases are typically high-stakes given the catastrophic loss involved.

Probate and personal representative appointment. The first procedural step is opening probate of the decedent's estate and having the court appoint a personal representative. Only the personal representative has standing to bring the wrongful death claim under Fla. Stat. § 768.20. The PR is typically a surviving spouse, adult child, or other family member, but may also be a person nominated in the decedent's will. The wrongful death lawsuit is filed in the PR's name on behalf of the estate and the survivors.

Survivor identification and damages allocation. Florida's Wrongful Death Act defines who can recover and what each category recovers. The surviving spouse is a survivor under all circumstances. Minor children are survivors. Adult children are survivors only when there is no surviving spouse, with limitations. Parents are survivors when their child has no spouse or children, with the medical malpractice exception under Fla. Stat. § 768.21(8) for parents of adult children 25 and older. Identifying every potential survivor and the damages each can recover shapes the case from the start.

Liability development and defendant identification. The same liability development required in any serious injury case applies, but the stakes are higher and the defense more aggressive. Multiple potential defendants may exist depending on the cause of death: the at-fault driver, the property owner, the manufacturer, the medical provider, the employer. Identifying every potentially responsible party preserves all available coverage.

Damages preparation across estate and survivor categories. Wrongful death damages divide between the estate and the survivors. Estate damages include lost earnings, net accumulations, and final medical and funeral expenses. Survivor damages include loss of support, loss of services, loss of companionship, loss of parental guidance, and mental pain and suffering. Each survivor's relationship to the decedent shapes their available damages. Economists and other experts typically support the financial damages calculations.

Settlement allocation and court approval. Wrongful death settlements often require court approval of the allocation among the estate and the various survivors. The court reviews the proposed allocation to ensure fairness across categories. Settlement coordination with probate court is part of the resolution process. The work continues from the death through probate, through civil litigation, through settlement allocation, and finally through estate distribution. Counsel coordinates each stage.

Common Questions

Frequently Asked Questions

Who can file a wrongful death claim in Florida?+
Only the personal representative of the decedent's estate can file the wrongful death claim under Fla. Stat. § 768.20. Family members do not file in their individual names. The PR is appointed by the probate court, typically based on the decedent's will or, in the absence of a will, Florida's intestacy priorities. The PR brings the claim on behalf of the estate and on behalf of the surviving family members entitled to damages under the Wrongful Death Act.
Who counts as a survivor under Florida's Wrongful Death Act?+
Florida defines survivors under Fla. Stat. § 768.18 as the surviving spouse, children, parents, and certain blood relatives or adopted siblings who were dependent on the decedent for support or services. The damages each survivor can recover depend on their relationship to the decedent and their dependency status. The surviving spouse, minor children, adult children when there is no spouse, and parents in certain circumstances all have specific damages categories defined by statute.
How long do I have to file a wrongful death claim in Florida?+
Florida wrongful death claims must be filed within 2 years of the date of death under Fla. Stat. § 95.11(4)(d). The clock runs from the date of death, not the date of the injury that caused the death. The deadline is strict. Missing the statute of limitations permanently bars the claim. Some claims involving government defendants or medical malpractice have additional notice requirements that must be satisfied within shorter periods.
What damages are available in a wrongful death case?+
Florida wrongful death damages divide between the estate and the survivors. Estate damages include the decedent's lost earnings, net accumulations the decedent would have left to survivors, and medical and funeral expenses. Survivor damages include loss of support and services, loss of companionship and protection (spouse), loss of parental companionship and guidance (children), and mental pain and suffering. Each category has its own proof requirements under Fla. Stat. § 768.21.
Why are medical malpractice wrongful death cases different?+
Florida law contains a controversial limitation in Fla. Stat. § 768.21(8): in medical malpractice wrongful death cases, parents of adult children 25 and older cannot recover for their pain and suffering, and adult children of decedents without surviving spouses cannot recover. This Florida exception does not apply to other types of wrongful death cases. Whether the case is a medical malpractice claim or some other type of wrongful death affects who can recover and what damages are available. Legislative reform of this provision has been considered but the current statute remains in effect.
Does the firm have to open probate before filing the wrongful death suit?+
Yes. Probate must be opened and a personal representative appointed before the wrongful death lawsuit can proceed. The probate work is typically coordinated alongside the wrongful death case preparation so the two tracks move in parallel. Once the PR is appointed, the lawsuit is filed in the PR's name on behalf of the estate and the survivors. Probate also handles the eventual distribution of any settlement or judgment proceeds.
Does a wrongful death settlement require court approval?+
Often yes. Florida wrongful death settlements typically require probate court approval of the allocation among the estate and the various survivors. The court reviews the proposed allocation to ensure each category and each survivor is treated fairly under the statute. Settlements involving minor children always require court approval and often the appointment of a guardian ad litem to evaluate the proposed allocation on the minor's behalf.
What if the decedent was partially at fault?+
Florida is a modified comparative negligence state under HB 837. The decedent's percentage of fault reduces the wrongful death recovery proportionally. A finding of more than 50% decedent fault bars recovery entirely. Even where some decedent fault exists, recovery is often available if the defendant's share of fault remains greater than 50%. Each case turns on the specific facts of the conduct that led to the death.
What does it cost to hire a wrongful death attorney?+
Plaintiff wrongful death cases are typically handled on contingency: the attorney is paid a percentage of the recovery only if there is a recovery. There is no upfront fee. Costs (filing fees, expert fees, deposition costs, accident reconstruction, life-care or economic expert work) are typically advanced by the firm and reimbursed at resolution. Probate filing fees and certain probate costs may be advanced separately. Defense representation is structured differently, typically on hourly or flat-fee arrangements.
Does the firm represent both plaintiffs and defendants?+
Yes. The firm represents both families pursuing wrongful death claims and businesses, drivers, property owners, or insureds facing claims. Each side requires different strategy, but the underlying preparation, document review, and disciplined approach to the case is the same. Conflicts are screened at intake on every matter.
Related Practice Areas

Related Personal Injury Matters

Wrongful death cases frequently overlap with other personal injury areas based on the cause of death. Each related practice carries its own framework.

Serious Injury Cases

Catastrophic injuries with permanent impairment, future medical care, and life-care planning. Often present in cases that ultimately result in wrongful death.

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Car Accidents

Motor vehicle accidents are among the most common causes of wrongful death in Florida. Florida no-fault, third-party liability, and UM/UIM frameworks apply.

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Premises Liability

Negligent security, unsafe property conditions, and other premises matters that can result in fatal injury and wrongful death claims.

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Personal Injury

For accident cases that span multiple categories or where the case posture requires broader personal injury strategy.

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Speak With Andre

Direct attorney access at (305) 774-7000

Wrongful death cases require both careful legal handling and respect for what the family is going through. Cases that resolve well are the ones where counsel was engaged early, probate was coordinated promptly, and the survivor and estate damages were developed with appropriate expert support.

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