What is the Florida Wrongful Death Statute?

Wrongful death is a legal term that simply means someone was wrongfully killed. For many years, Florida law did not give family members the right to hold someone who wrongfully killed their loved one accountable in civil court. That all changed when the Florida legislature created the Florida wrongful death statute.

The current version of the act is contained within section 768.16 through section 768.26 Florida statutes. As a group, these statutes are commonly referred to as the Florida Wrongful Death Act.

Florida Wrongful Death Statutes FAQs

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What Is the Florida Wrongful Death Statute?

Who Is Entitled to Wrongful Death Damages in Florida?

What Is the Florida Wrongful Death Statute?

While the Florida Wrongful Death Act corrected the problem of holding the wrongdoer responsible for killing a loved one in civil court, there are still many inequalities. One comes in the form of limiting the circumstances in which adult children and parents can be compensated for their loss.

Another form of inequality comes in the form of banning any recovery in medical malpractice cases for the death of unmarried adults without children, many gay people, and many senior citizens. Before we get to the inequalities and discrimination, it is important to understand what compensation is available under the act.

Who Is Entitled to Wrongful Death Damages in Florida?

Florida limits the people that are entitled to be wrongful death beneficiaries to certain close relatives. Furthermore, who can recover also depends on the circumstances. These are the basic class of people that can recover:

  • All spouses
  • All minor children
  • Adult children when there is no spouse
  • Parents of adult children with no spouse and no children
  • Parents of minor children

Under the Florida Wrongful Death Act, the personal representative of the decedent is the only person who has the right to move forward with a claim. Florida Statutes §768.20 states the personal representative shall bring claims for the benefit of the decedent’s estate and for the benefit of the decedent’s survivors.

The damages recoverable by the estate include:

  • Medical bills
  • Funeral and burial expenses and
  • Lost wages from the date of injury up to the date of death
  • Net accumulations

The decedent’s spouse is entitled to damages for loss of companionship and for mental pain and suffering. Minor children under the age of 25 are also entitled to loss of companionship and mental pain and suffering compensation.

If the decedent had no spouse, then adult children are entitled to loss of companionship and mental pain and suffering. If the decedent had no spouse and no children, then parents are entitled to compensation for loss of companionship and mental pain and suffering.

Florida Statutes §768.24 indicates that a survivor’s death before final judgment shall limit the survivor’s recovery to lost support and services to the date of his or her death. This means the estate can still collect for any loss of support and services. Once the survivor dies, their claim for any damages for pain and suffering dies with them, and it is not replaced.

This can literally end a lawsuit. The claim for loss of support and services up to the time of a survivor’s death often has very little value. The most common example of this happening occurs when the only survivor is a spouse. If the spouse dies before the lawsuit of the decedent is resolved, the entire lawsuit may die with them. This is a real risk when the spouse is elderly.

Many defense lawyers recognize this and purposely drag out wrongful death lawsuits involving elderly spouses with the hope that the spouse will die. All of this makes most plaintiff lawyers hesitant to bring wrongful death claims when the only survivor is an elderly spouse.

When it comes to how this act defines survivors, adult children and their parents absolutely have fewer rights. Under the wrongful death act, adult children are only entitled to compensation for their loss if there is no surviving spouse. This means that if the person was married when they died, the adult children are not entitled to compensation for their loss.

Parents are also only entitled to compensation if the decedent was a minor or if the decedent was an unmarried adult and has no children. This means that parents of a married decedent or a decedent with adult children are not entitled to compensation for their loss.

In Florida, healthcare providers can’t be held accountable in a court of law if their mistake killed an adult who was not married and had no children. They also can’t be held accountable if the patient they killed is an unmarried adult with adult children.

The greatest inequality of all occurs in medical malpractice cases. Unfortunately, the healthcare industry has a lot of power and influence over the Florida legislature. As a result, the legislature chose to limit the circumstances when a survivor can recover in a medical malpractice case. Basically, adult children and parents can never recover damages in a medical malpractice case.

This not only eliminates their damages, but it also effectively eliminates all lawsuits in wrongful death cases involving medical malpractice in Florida when the decedent is older than 25, is not married, and has no minor children. This means there is no way justice can be done on behalf of certain individuals. Think about that very carefully.

Will These Laws Change in the Future?

So far, there is no sign that Florida lawmakers will right this wrong in the immediate future.

The Florida legislature made a conscious choice not to hold healthcare providers accountable in these circumstances.

What is even more egregious is the fact that the Florida Supreme Court upheld this discriminatory statute on April 20, 2000, in the case of Mezrahi v. North Miami Medical Center L.T.D. The end result was that the Florida legislature and the Florida Supreme Court concluded that it is acceptable to purposefully discriminate against this group of people.

It does not directly state within the Wrongful Death Act that the lives of gay people and senior citizens have no value. However, that is certainly the effect in medical malpractice cases involving death.

The Florida legislature chose not to provide any real remedy for these individuals. This discrimination disproportionately affects gay people because they are less likely to be married and less likely to have children. It disproportionately affects seniors because their spouses have often passed away and their children, if they have any, are adults.

In Florida, a wrongful death lawsuit must be filed within two years after the death occurred. In medical malpractice and nursing home death cases, the lawsuit must be brought within two years of when you knew or should have known of the wrongful conduct, regardless of when the person died. There are some exceptions to these limits, but they are rare.

To prove fault under the Florida Wrongful Death Act, there must be more than just an accidental death. The wrongdoer must have engaged in wrongful conduct. This includes:

Negligent Conduct

Negligent conduct occurs when someone fails to use reasonable care. This is the most common kind of wrongful death claim. Examples of negligent conduct include:

  • Someone is not paying attention while driving
  • A property owner failing to maintain their property
  • A doctor performing below the standard of care

Reckless Conduct

Reckless conduct occurs when someone knows the conduct could cause someone’s death, but they do it anyway. Examples of reckless conduct include:

  • A driver drag racing down a crowded city street
  • A person choosing to engage in drunk driving
  • A company choosing not to redesign a product it knows has a design flaw that has harmed someone
Intentional Conduct

Intentional conduct occurs when someone intends to kill another person or group of people. The most common type of intentional conduct involves murder. A wrongful death claim can also be filed when the victim was killed in a terrorist attack.

You would think murder wrongful death claims are very common, but the truth is, this is the least likely claim to bring. The reason is that insurance will not pay a claim for an intentional act. Most murderers do not have enough money to make going after their assets worth pursuing. As a result, the only time wrongful death murder cases are pursued is when the murderer is wealthy.

You may want to hire a wrongful death lawyer in Tampa if your loved one was the victim of a fatal medical mistake. If the deceased provided you with financial support, you may be entitled to compensation for that and other economic and non-economic losses.

Wrongful death law firms in Florida will be able to help you make sense of the state’s complex laws as they guide you through your case. If you believe your loved one wouldn’t have died if it weren’t for a preventable mistake, it’s worth speaking to a legal professional to learn more about your rights.


Our main office is here in Downtown Tampa, Florida in the Channelside neighborhood. Office in Wesley Chapel and Largo are available by appointment only.

Distasio Law Firm