Miami Wrongful Death Attorney

A wrongful death claim in Florida follows a specific set of rules, separate from a standard personal injury case, and getting the early steps right matters from the first call. A few core questions come up in nearly every case.

• Who can file a wrongful death claim in Florida
• How long you have to file after a death
• What damages are available to survivors
• Whether the decedent being partially at fault changes the case
• Whether probate has to happen before filing suit
• What it costs to hire a wrongful death attorney

Florida’s Wrongful Death Act is procedurally different from an ordinary injury claim. Here is why each one does.

Where Wrongful Death Cases Come From

A handful of underlying case types account for the majority of Florida wrongful death claims.

What to Know About a Florida Wrongful Death Claim

• Only the personal representative can file: family members do not bring the claim in their individual names under Fla. Stat. § 768.20.
• The claim deadline is two years from the date of death: not from the date of the original injury, under Fla. Stat. § 95.11(4)(d).
• Damages divide between the estate and survivors: each category has distinct proof requirements under Fla. Stat. § 768.21.
• Comparative fault can reduce recovery: under Florida’s HB 837 framework, more than 50 percent decedent fault bars recovery entirely.
• Probate and the lawsuit typically move in parallel: a personal representative must be appointed before the case can proceed.

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?

Fla. Stat. § 768.18 defines survivors 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. See our full Florida Statute of Limitations reference guide for the complete breakdown by case type.

What damages are available in a wrongful death case?

Wrongful death damages in Florida 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 particular proof requirements under Fla. Stat. § 768.21. See our full Wrongful Death Damages guide for a complete breakdown.

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, consultant fees, deposition costs, accident reconstruction, life-care or economic consultant work) are typically advanced by the firm and reimbursed at resolution. Probate filing fees and certain probate costs may be advanced separately. See our full Contingency Fee Guide for the exact percentages. 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.

The outcome of a Florida wrongful death case depends on the specific facts, the available evidence, and how the probate and litigation tracks are coordinated, and that requires a real review, not a guess. See our full Wrongful Death Damages guide for the complete breakdown. The first consultation is free and confidential, with no obligation to retain.