State file: Florida

Wrongful Death Attorneys in Florida: Your Complete Legal Guide

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2 years General deadline in the table of this guide. The same row names another period for some deaths: read it before relying on this number.

In Florida one lawsuit, brought by the personal representative, recovers damages for every survivor and for the estate; the person’s own injury claim does not survive the death as a separate case. Each survivor’s damages depend on who they are: a spouse, a child under 25, a parent of a minor and a dependent relative each have different rights under the Florida Wrongful Death Act. In medical negligence deaths, adult children and the parents of an adult child cannot recover certain non-financial damages. That rule did not come from the 2023 changes; what Florida changed in 2023 was a new bar on recovery for a party more than 50 percent at fault, which does not apply to medical negligence deaths.

Florida Wrongful Death at a Glance

Question Florida answer
Who files the lawsuit? The personal representative, for the survivors and the estate (s. 768.20)
Who are the survivors? Spouse, children, parents, and dependent blood relatives and adoptive siblings (s. 768.18(1))
Filing deadline Two years (s. 95.11(5)(e)); no time limit for a claim against a person for murder or manslaughter (s. 95.11(11))
Medical negligence Presuit notice of intent to each prospective defendant before filing (s. 766.106)
Adult children and parents of adult children Cannot recover certain non-financial damages in medical negligence deaths (s. 768.21(8))
Fault rule A party more than 50% at fault for their own harm recovers nothing, except in medical negligence cases (s. 768.81(6))
State and local government Written claim to the Department of Financial Services within two years; payment limits of $200,000 per person and $300,000 per incident (s. 768.28)

One Action for Everyone

The Florida Wrongful Death Act (sections 768.16 through 768.26) makes the personal representative the only plaintiff. The personal representative “shall recover for the benefit of the decedent’s survivors and estate all damages” caused by the injury resulting in death (s. 768.20).

That single case replaces the person’s own injury claim: “When a personal injury to the decedent results in death, no action for the personal injury shall survive, and any such action pending at the time of death shall abate” (s. 768.20). Losses the estate itself suffered, such as lost earnings between the injury and death, are recovered by the personal representative inside the wrongful death action instead.

The complaint must identify every potential beneficiary, including the estate, and allege each one’s relationship to the person who died (s. 768.21). A defense that would bar or reduce one survivor’s recovery, as if that survivor were the plaintiff, can be raised against that survivor, but it does not affect any other survivor’s recovery (s. 768.20).

Who Counts as a Survivor

“Survivors” are the decedent’s spouse, children and parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters. A child born out of wedlock is a survivor of the mother; such a child is a survivor of the father only if the father recognized a responsibility for the child’s support (s. 768.18(1)).

“Minor children” means under 25. For wrongful death purposes, “minor children” means children under 25 years of age, “notwithstanding the age of majority” (s. 768.18(2)). A 22-year-old is a minor child under this statute; that definition controls several of the damages rules below.

What Each Survivor Can Recover

Florida assigns damages by relationship (s. 768.21):

Who What they can recover
Every survivor Lost support and services from the date of injury to death, and future loss of support and services reduced to present value
Surviving spouse Loss of the decedent's companionship and protection, and mental pain and suffering
Minor children (and all children if there is no surviving spouse) Lost parental companionship, instruction and guidance, and mental pain and suffering
Parents of a deceased minor child Mental pain and suffering
Parents of a deceased adult child Mental pain and suffering, only if there are no other survivors
A survivor who paid them Medical or funeral expenses
The estate (through the personal representative) Lost earnings from injury to death (less lost support of survivors), certain medical and funeral expenses, and in some cases lost "net accumulations" the person would have saved

Awards to the estate are subject to the claims of creditors who comply with probate law (s. 768.21(7)). If both spouses die within 30 days of each other from the same incident, each is treated as having been predeceased by the other (s. 768.21(3)).

Medical Negligence: The Adult-Child Rule

Section 768.21(8) provides that the damages in subsection (3), the children’s companionship, guidance and mental pain and suffering, “shall not be recoverable by adult children,” and the damages in subsection (4), a parent’s mental pain and suffering, “shall not be recoverable by parents of an adult child with respect to claims for medical negligence.”

Two points determine whether it applies:

  • “Adult” means 25 or older. Because “minor children” are those under 25, the bar affects children 25 and older, and the parents of a child who was 25 or older.
  • It is not a 2023 law. The statute’s history line lists amendments in 1972, 1981, 1985, 1990, 1997, 2002, 2003 and 2020, and none in 2023. The rule predates the 2023 changes.

Financial losses, such as lost support and services, are not affected by subsection (8).

The Real 2023 Change: More Than 50 Percent at Fault

Florida’s comparative fault statute was amended in 2023 (chapter 2023-15). It now provides that “any party found to be greater than 50 percent at fault for his or her own harm may not recover any damages” in a negligence action covered by the statute, and that this rule “does not apply to an action for damages for personal injury or wrongful death arising out of medical negligence” (s. 768.81(6)).

Deadlines

General rule. An action for wrongful death must be brought within two years (s. 95.11(5)(e)).

Murder and manslaughter. A wrongful death action seeking damages under s. 768.21 against a natural person for an intentional tort resulting in death from acts described in the murder or manslaughter statutes “may be commenced at any time.” An arrest, criminal charges or a conviction is not required to file the civil case (s. 95.11(11)).

Medical negligence. Before filing, the claimant must complete a presuit investigation and serve each prospective defendant with notice of intent to initiate litigation by one of the methods the statute lists, such as certified mail with return receipt or a process server. The notice must be served within the time limits of s. 95.11, and the limitations period is tolled while the 90-day presuit period runs (s. 766.106(2), (4)).

Claims Against the State or Local Government

The state and its agencies and subdivisions are liable for torts as a private person would be, but not for punitive damages or prejudgment interest. They will not pay more than $200,000 to any one person, or $300,000 for all claims arising from the same incident, unless the Legislature acts on the excess (s. 768.28(5)(a)).

Before suing, the claimant must present the claim in writing to the appropriate agency and, except for claims against a municipality or county, to the Department of Financial Services. For wrongful death, the written claim must be presented to the Department of Financial Services within two years after the claim accrues. In wrongful death actions, a failure to make final disposition within 90 days after filing is treated as a final denial, and the wrongful death limitations period is tolled for the time the department or agency takes to deny the claim (s. 768.28(6)).

The firm listings below are separate from the legal information above. Statements about the law in a firm description are not part of this guide’s legal review.

Top 3 Wrongful Death Attorneys in Florida

1. Searcy Denney Scarola Barnhart & Shipley, P.A.

This firm is Florida’s premier medical malpractice and catastrophic injury firm. With the restrictive medical malpractice laws regarding adult children and parents, having a firm that knows exactly how to identify alternative theories of liability and maximize remaining allowable economic damages is vital. They have secured billions for clients in Florida.

2. Morgan & Morgan

The largest personal injury firm in America. In Florida, their resources are virtually limitless. If a wrongful death involves a massive trucking company, a negligent corporation, or a multi-vehicle collision, they have the capital to out-spend and out-litigate the biggest insurance defense firms in the state. Their statewide network of offices ensures rapid response across all Florida jurisdictions.

3. Farah & Farah

Because Florida requires a Personal Representative to act on behalf of the specific statutory beneficiaries, their estate-planning partners quickly set up the legal structures needed to file the suit and lock in evidence before the strict 2-year deadline expires. They are a highly responsive firm with deep statewide reach and strong relationships in Florida courts.

Frequently Asked Questions

Does the medical negligence restriction apply to a 23-year-old’s parents?

No. A 23-year-old is a “minor child” under the Wrongful Death Act, which uses an age of under 25. The parents of a child under 25 may recover for mental pain and suffering, including in medical negligence cases.

Can a 30-year-old recover for the loss of a parent who died from a medical error?

Not for lost companionship, guidance or mental pain and suffering; s. 768.21(8) bars those damages for adult children in medical negligence cases. Lost support and services, if the child can prove them, are not barred by that subsection.

Can the family file a separate lawsuit for what the person suffered before dying?

No. When an injury results in death, the injury claim does not survive and a pending injury case abates. Those losses are handled within the wrongful death action brought by the personal representative.

Is there a deadline if the person who caused the death was never charged?

Against a person whose intentional act constituting murder or manslaughter caused the death, the wrongful death action may be filed at any time, and no arrest, charge or conviction is required.

Sources and Last Review

Florida Statutes sections 95.11, 766.106, 768.16 through 768.21, 768.28 and 768.81 (Florida Statutes, section 768.21, on the Florida Senate site). Legal information reviewed October 2026. This page is general information about Florida law, not legal advice about a specific death.