Florida's Wrongful Death Act, Explained — Who Files, Who Recovers, and What

One Lawsuit, Filed by One Person — The Rule Most Families Get Wrong

Florida structures wrongful death differently than most states, and the first rule surprises nearly everyone: individual family members do not file wrongful death lawsuits. Under § 768.20, one action is brought by the personal representative of the estate — the person named in the will, or appointed by the Orange County probate court when there is no will — on behalf of the estate and every eligible survivor, all of whom must be identified in the complaint.

The structure has teeth. A survivor whose losses aren't pleaded can be left out of the recovery; a personal representative appointed late burns months off the two-year clock. The probate appointment and the survivor inventory are legal work that should happen in the first weeks — which is why experienced wrongful death counsel handles the probate step as part of the case rather than sending families to figure it out alone.

Survivors Under § 768.18 — Including the Under-25 Rule

• Surviving spouse — married to the deceased at death.
• Children — including adopted children. Critically, the Act defines “minor children” as under 25 for key non-economic damages — a 23-year-old is a “minor” for wrongful death purposes.
• Parents — most significant when the deceased was a child, and relevant for adult children's deaths when no other survivors exist.
• Dependent blood relatives and adoptive siblings — those partly or wholly dependent on the deceased for support or services.
• Generally excluded: grandparents, aunts and uncles, cousins, unadopted stepchildren, unmarried partners, and fiancés — no matter how close the relationship was in life.

Not sure which category fits your family? Our free Wrongful Death Survivor Checker walks you through it in three questions. Category determines recovery: a spouse's companionship damages, a child's lost parental guidance, a parent's mental pain and suffering, and every survivor's lost support and services are distinct claims under § 768.21, and the estate separately recovers lost earnings, lost net accumulations, and expenses. Valuing each correctly — with forensic economists where the numbers are large — is what separates full recoveries from convenient ones. Our guide to the average Florida wrongful death settlement covers how these damages translate into case value.

Deadlines, Survival Actions, and the Malpractice Carve-Out

The statute of limitations is two years from death (§ 95.11(4)(e)) — short by national standards, and effectively shorter in practice: government-entity cases require pre-suit notice under § 768.28, and medical-malpractice deaths require a statutory pre-suit investigation that consumes months before a lawsuit can be filed at all.

Families should also understand the survival action distinction (§ 46.021): the wrongful death claim compensates survivors for the death, while a survival action carries forward the deceased's own claim for pre-death pain, suffering, and expenses. Where a victim survived days or weeks before dying, which framework applies — and what each is worth — is a strategic decision with real dollar consequences.

Finally, the Act contains one carve-out every Florida family should know exists before they need it: § 768.21(8), the “Free Kill” provision, which bars non-economic damages for adult children and parents of adult children in medical malpractice deaths only — a rule that survived repeal efforts in both 2025 and 2026. We cover its history, its limits, and families' remaining options in our dedicated guide to Florida's Free Kill law.

Florida Wrongful Death Act — FAQ