When someone you love is killed because of another person's negligence — a drunk driver, a distracted trucker, a property owner who ignored a known hazard — Florida law gives surviving family members the right to hold that person legally accountable. A wrongful death lawsuit is not about replacing your loved one. It is about making sure the people and companies whose negligence caused the death bear the financial consequences of what they did.
Florida's Wrongful Death Act (Florida Statute §§ 768.16–768.26) defines precisely who can sue, what damages are recoverable, and how the process works. It is one of the most consequential bodies of law in Florida personal injury practice — and one of the most misunderstood by families navigating tragedy while trying to understand their legal options.
This guide explains Florida wrongful death law in plain language: who qualifies to file, what compensation is available, what you must prove, and why the statute of limitations makes acting quickly essential. It was written by Ian Duncan, a Florida personal injury attorney (Florida Bar #25920) who has represented surviving families in wrongful death cases arising from fatal car accidents, truck crashes, premises liability deaths, and medical malpractice across Palm Beach County. If your family has lost someone in a fatal accident in West Palm Beach or anywhere in Palm Beach County, Duncan Injury Group is here to help. We have recovered over $250 million for injury and death victims, and we charge no fees unless we win.
What Is a Wrongful Death Claim Under Florida Law?
Under Florida Statute § 768.19, a wrongful death action exists when the death of a person is caused by the wrongful act, negligence, default, or breach of contract of another person or company. Put simply: if the person who died could have brought a personal injury lawsuit had they survived, the family can bring a wrongful death lawsuit after their death.
Florida's Wrongful Death Act was specifically designed to ensure that wrongdoers cannot escape full accountability simply because their negligence was so severe that it killed the victim rather than merely injuring them. Without the Act, defendants would actually face less liability for the most catastrophic outcomes — a result the Florida Legislature expressly rejected.
Common Causes of Wrongful Death Cases in Florida
Wrongful death claims arise from a wide variety of fatal incidents in Palm Beach County and across Florida:
- Fatal car and truck accidents — including crashes caused by drunk drivers, distracted drivers, and commercial truck operators with fatigued or impaired drivers
- Fatal motorcycle accidents — particularly high-speed crashes on I-95, Southern Boulevard, and US-1 through Palm Beach County
- Pedestrian fatalities — especially along Okeechobee Boulevard, Belvedere Road, and other high-traffic corridors in West Palm Beach
- Fatal slip and fall accidents — in hotels, resorts, shopping centers, construction sites, and private properties where dangerous conditions were known and ignored
- Medical malpractice deaths — surgical errors, misdiagnoses, anesthesia failures, and hospital negligence
- Workplace accident deaths — construction fatalities, industrial accidents, and employer negligence beyond workers' compensation
- Drowning deaths — from pool accidents, boating accidents, and inadequately supervised water facilities
- Defective product deaths — vehicles with defective parts, dangerous consumer products, and pharmaceutical failures
Who Can File a Wrongful Death Lawsuit in Florida?
Florida's Wrongful Death Act has specific rules about who has the legal authority to file and who can receive compensation. This is an area where many families are surprised by the details — and where working with an experienced wrongful death attorney matters.
The Personal Representative Files the Lawsuit
Under Florida Statute § 768.20, a wrongful death lawsuit must be filed by the personal representative of the deceased person's estate. The personal representative — named in the deceased's will, or appointed by a court if there is no will — acts as the plaintiff in the case. However, the personal representative is filing on behalf of both the estate and the surviving family members (called "survivors" under the Act).
Who Are the "Survivors" Under Florida's Wrongful Death Act?
Florida Statute § 768.18 defines "survivors" as the following family members who may recover damages through the wrongful death action:
| Survivor Category | Damages Available | Important Notes |
|---|---|---|
| Surviving spouse | Loss of companionship, pain and suffering, mental anguish; loss of consortium; medical and funeral expenses | Must have been legally married at time of death; common-law spouses generally do not qualify |
| Minor children (under 25) | Lost parental companionship, instruction, and guidance; pain and suffering; mental anguish | Children under 25 recover even if a surviving parent exists; adult children may recover if there is no surviving spouse |
| Adult children (25 and over) | Loss of parental companionship and guidance; pain and suffering | May only recover if there is no surviving spouse — Florida law prioritizes spouses over adult children |
| Parents of a minor child | Mental pain and suffering; loss of services and support | When the decedent was a minor, parents always have a right to recovery regardless of other survivors |
| Parents of an adult child | Mental pain and suffering | Only recoverable if the deceased adult child left no surviving spouse or children |
| Other blood relatives / adoptive siblings | Loss of support and services (if financially dependent) | Recoverable only if the relative was partially or wholly dependent on the deceased for support |
| The estate itself | Medical expenses, funeral costs, lost earnings from date of death through trial | Estate claims are separate from individual survivor claims |
What Damages Are Available in a Florida Wrongful Death Case?
Florida's Wrongful Death Act authorizes two distinct categories of damages: damages for the surviving family members themselves, and damages recovered on behalf of the deceased's estate. An experienced attorney will pursue both.
Damages for Surviving Family Members
Individual survivors can seek compensation for the personal losses they have suffered as a direct result of losing their loved one:
- Loss of companionship, comfort, and society — the grief and loss experienced by a spouse or child who has lost their closest relationship
- Mental pain and suffering — emotional anguish caused by the death, which can be severe and long-lasting
- Loss of parental guidance — for children who have lost a parent's instruction, mentorship, and support during childhood and young adulthood
- Loss of financial support — when survivors were financially dependent on the deceased's income
- Medical and funeral expenses — if paid by a surviving family member
Estate Damages
The estate of the deceased may recover for losses suffered by the decedent and borne by the estate:
- Lost earnings and benefits from the date of death through the estimated end of the decedent's working life — calculated based on age, career trajectory, earning history, and benefits
- Lost prospective net accumulations — what the decedent would have accumulated and left to heirs had they lived
- Medical expenses incurred between injury and death (if the person survived for any period before dying)
- Funeral and burial costs paid by the estate
Are Punitive Damages Available in Florida Wrongful Death Cases?
In cases involving gross negligence or intentional misconduct — such as a drunk driver with a prior DUI history, or a company that knowingly concealed a product defect — Florida law allows surviving families to seek punitive damages under Florida Statute § 768.72. Punitive damages are not capped in wrongful death cases involving intentional misconduct, and they can significantly increase total recovery. Florida law requires a plaintiff to demonstrate reasonable evidence of entitlement to punitive damages before they can be added to the case.
How to Prove a Wrongful Death Claim in Florida
To win a wrongful death case in Florida, the personal representative must prove four legal elements by a preponderance of the evidence — meaning it is more likely than not that each element is true.
The defendant must have owed a legal duty of care to the deceased. For drivers, this is the duty to operate a vehicle safely and follow traffic laws. For property owners, it is the duty to maintain safe premises. For doctors, it is the duty to provide care meeting the standard of a competent physician. Establishing duty is generally the easiest element in most wrongful death cases.
The defendant must have breached the duty of care through negligent action or inaction. Running a red light, texting while driving, ignoring maintenance inspections on a commercial vehicle, leaving a pool unsecured — these are all examples of breach. In complex cases involving commercial defendants or medical providers, expert witnesses are essential to establish that the defendant's conduct fell below the required standard.
There must be a direct causal link between the defendant's breach and the death of your family member. This element — causation — is often where wrongful death cases are most fiercely contested. Insurance companies frequently argue that other factors caused or contributed to the death. A skilled wrongful death attorney uses crash reconstruction experts, medical examiners, and forensic specialists to establish that the defendant's negligence was the proximate cause of death.
The surviving family members and the estate must have suffered actual, quantifiable damages as a result of the death. This includes both economic losses (lost income, medical bills, funeral costs) and non-economic losses (grief, loss of companionship, mental anguish). Detailed documentation of these damages — through financial records, medical bills, expert testimony, and personal accounts — forms the foundation of what your family ultimately recovers.
Florida's Comparative Fault Rule in Wrongful Death Cases
Under Florida's modified comparative fault system (effective March 2023), if the deceased was partially at fault for the incident that caused their death, the damages are reduced proportionally. If the deceased was found to be more than 50% responsible, the family is generally barred from recovering non-economic damages. This is why it is critical to have an attorney who aggressively investigates causation and pushes back on attempts by defendants to shift blame onto the victim.
Florida Wrongful Death Statute of Limitations: Don't Miss This Deadline
Under Florida Statute § 95.11(4)(d), families have two years from the date of death to file a wrongful death lawsuit. This is one of the most consequential deadlines in all of Florida law — miss it and the court will almost certainly dismiss the case permanently, regardless of how strong the merits are.
When Does the Two-Year Clock Start?
In most cases, the statute of limitations begins running on the date your loved one died. However, there are important nuances:
- Delayed discovery — If the cause of death was not immediately apparent (such as in a medical malpractice case where the connection between negligence and death took time to discover), the clock may begin at the point of discovery, not the date of death. This is called the "discovery rule."
- Government defendants — If the at-fault party is a government agency or employee (a county vehicle, a government-owned property), pre-suit notice requirements under Florida Statute § 768.28 apply, and the timeline is compressed. Families typically have only three years from the date of the wrongful act, and must provide formal written notice before filing suit.
- Minors as survivors — Special tolling rules may apply when minor children are among the survivors. An attorney can analyze whether tolling provisions extend the filing window in your specific case.
Exceptions and Tolling Provisions
Under limited circumstances, the two-year statute of limitations may be tolled (paused). This can occur when the defendant fraudulently concealed facts that would have alerted the family to potential negligence, or when the defendant is out of state and cannot be served. However, these exceptions are narrow and courts apply them strictly. Do not assume a tolling exception applies to your case without consulting an attorney.
What to Do After a Loved One Dies in an Accident in West Palm Beach
Losing a family member suddenly and violently is one of the most traumatic experiences a person can face. The legal steps below are not about rushing through grief — they are about protecting your family's rights during the period when critical evidence is most at risk.
Request the police accident report, the medical examiner's report, the 911 call recordings, and any witness statements as soon as they become available. If the death occurred at a business or property, send a written notice demanding preservation of surveillance footage, maintenance records, and incident logs. Once these records are requested in writing, the property owner has a legal duty to preserve them — failure to do so can be used against them in litigation.
- Florida accident reports are available through the FDLE or the responding agency
- Medical examiner reports are public records in Florida and available upon request
- Incident reports at hotels, stores, and restaurants must be preserved and produced in litigation
Within days of a fatal accident, the at-fault party's insurance company will typically contact surviving family members seeking a recorded statement. These calls are not routine courtesy. They are an effort to gather information that can be used to reduce or deny the claim — including statements about the deceased's behavior, health, or prior injuries. Politely decline and tell them your attorney will be in touch. Do not sign any releases or accept any settlement payments before consulting an attorney.
Because a wrongful death lawsuit must be filed by the personal representative of the estate, someone must be appointed to that role. If your loved one had a will, the named executor typically serves as personal representative. If not, a surviving spouse or adult child can petition the probate court for appointment. Your wrongful death attorney can coordinate with a probate attorney to move this process forward efficiently.
The investigation in a wrongful death case needs to begin immediately. At Duncan Injury Group, we deploy our investigative team as soon as we take a case — issuing preservation notices, retaining experts, and gathering evidence before it disappears. We handle all aspects of the legal process on a contingency fee basis. You pay nothing unless we recover compensation for your family. Call us any time at (561) 576-8313 for a free consultation.
