One question you might not be asking, but that you should be asking, is who can bring a wrongful death lawsuit in Florida?  Unfortunately, Florida’s wrongful death statute has some intricate rules with numerous exclusions and exceptions, which mean that many people hurt on the deepest levels by the death of a loved one astoundingly and unfairly cannot recover anything in a Florida wrongful death lawsuit.  On the other hand, there are creative ways in exceptional cases that a skilled Central Florida accidental death lawyer can utilize to successfully argue that some of those people in a gray area type of category should be permitted to bring a wrongful death lawsuit.

Typically, Who Can Sue For Damages In A Florida Wrongful Death Lawsuit?

There are two broad categories of claimants entitled to recover in a wrongful death lawsuit.

First Category of Potential Claimants In A Wrongful Death Lawsuit

You might know that when someone dies, they leave an “estate.”  Their “estate” basically includes the sum total of everything that they owned during their lifetime, which is left to beneficiaries, either in a will or (if there is no will) as the beneficiaries are defined and determined by statute in Florida.  So the first category of claimants entitled to sue under Florida’s wrongful death statute is someone called the “personal representative of the estate,” who is entitled to bring a wrongful death lawsuit on behalf of any and all estate beneficiaries.  The problem with the first category is that the available damages are somewhat limited.

Second Category Of Potential Claimants In A Wrongful Death Lawsuit

The personal representative may also bring a wrongful death lawsuit on behalf of the “survivors” of the person who died. In fact, the personal representative is required to include all survivors in any wrongful death action. These survivors may also be part of the estate (the first category). But they are different because they are entitled to recover different types of damages, which can often lead to much higher damages settlements or verdicts. Florida’s wrongful death statute defines who qualifies as a survivor, in some ways unfairly excluding those strongly affected by the death of a loved one. Survivors sometimes entitled to more significant damages (should the case otherwise be proven) are:

• The decedent’s spouse;
• The decedent’s children (although minor children, defined as those under the age of 25, are entitled to higher damages);
• The decedent’s parents; and
• When they were at least partially dependent on the decedent for support or services, blood relatives including adoptive brothers and sisters.

Additional Important Limitations On Damages in Wrongful Death Lawsuits

Limits on Recovery by Children

A child of any age may recover for lost “support and services” from the date of the decedent’s injury to the date of their death.  He or she may also recover future loss of support and services.   However, if there was a surviving spouse, children over 25 cannot recover what are often more important categories of damages (from a financial recovery perspective).  Specifically, if there was no surviving spouse, then children of any age may also receive damages for lost parental companionship, instruction and guidance, as well as mental pain and suffering.  (To make matters even more confusing, adult children may not recover for these higher categories of damages (that is, lost parental companionship, instruction, guidance + mental pain and suffering) if the wrongful death was caused by medical negligence–we can thank the powerful insurance and medical lobby for that extremely unfair exclusion.)

Limits On Recovery By Parents

Parents may not recover for pain and suffering if the deceased child was over the age of 25 when he died, unless there were no other survivors (and parents of adult children cannot recover these damages if the wrongful death was caused by medical negligence aka medical malpractice).

So parents of a deceased minor child (that is, under the age of 25) may recover:

• the value of lost support and services;
• future lost support and services;
• mental pain and suffering; and
• any medical or funeral expenses of the deceased child which the parents have paid.

Parents of an adult child (meaning over the age of 25) may recover all of the above damages, except they cannot recover what is very often one of the most important categories of damages, which is mental pain and suffering, unless there were no other survivors (and the parents of an adult child cannot recover mental pain & suffering damages if the death was caused by medical negligence aka medical malpractice, as opposed to some other negligence, for example, a car accident).  

Other Complicating Factors For Spouses, Parents And Children

There are many other complicating factors, far too numerous and frankly boring to discuss on a website for the general public.  But just know that there are special rules, just in terms of who may recover in a wrongful death lawsuit, regarding many even more complicated issues such as things like common law marriages, intent to divorce, remarriage, intention to remarry, adopted children, children born out of wedlock, biological fathers versus stepfathers, stepchildren, posthumous children (meaning child unborn at the time of the parent’s death), illegitimate children, stillborn children, divorced parents and financial dependency.

What Does “Support” And “Services” Mean?

Support is defined under the statute as including “contributions in kind as well as money.”  Services are defined as “tasks, usually of a household nature, regularly performed by the decedent that will be a necessary expense to the survivors of the decedent.  These services may vary according to the identity of the decedent and survivor and shall be determined under the facts of each case.”

In plain English, speaking very generally, support and services means the amount of money, or value of services, that you can prove that the deceased person would have provided to you.  Typically, this requires an expert economist to determine.  Overall, in the majority of cases, these damages are not considered nearly as valuable as those for mental pain and suffering.

If You Are Trying To Figure This Out, Please Call Me

As you can hopefully see, these rules are complicated, and truly I have only scratched the surface. You really should not decide, on your own, whether and how these rules apply to your potential wrongful death lawsuit. Besides the complexity of the statutes and cases that currently exist (and were the basis of this article), Florida’s wrongful death statute and other potentially relevant statutes are amended regularly and judges can also interpret the rules in slightly different ways depending on a variety of factors (and good lawyers can further influence the outcome with an amazing number of creative arguments and strategies). The above discussion should really only give you a general idea of the types of individuals who might be able to recover by way of a wrongful death lawsuit. For careful analysis of the facts of your specific case, I urge you to call me at (407) 803-2139.