Who can file a wrongful death lawsuit in Florida?

Who can file a wrongful death lawsuit in Florida?

In Florida, only the personal representative, the person a court appoints to manage the estate of the person who died, can file a wrongful death lawsuit. That person sues for the estate and the survivors: the spouse, children, parents, and blood relatives and adoptive siblings partly or wholly dependent on the person for support or services.

Whether you ask who can sue for wrongful death or who can file a wrongful death claim, family members do not each bring their own case. Under section 768.19, Florida Statutes, a wrongful death is a death "caused by the wrongful act, negligence, default, or breach of contract or warranty of any person," including on navigable waters, when the person who died could have sued and recovered damages for the injury if they had lived, even if the death happened in circumstances that are a felony.

For more about these cases, see the page on wrongful death lawyers in Melbourne.

What does Florida law say about who can sue?

Who files the lawsuit

Section 768.20, Florida Statutes, says: "The action shall be brought by the decedent's personal representative," who recovers damages for the benefit of the survivors and the estate. When an injury causes a person's death, no lawsuit for that personal injury survives, and the law says a lawsuit for that injury already pending at the time of death "shall abate," so it cannot go on as an injury case. The personal representative's wrongful death lawsuit is the case that goes forward. A defense, meaning a legal reason to deny or cut a claim, that would bar or reduce one survivor's recovery, if that survivor were the one suing, may be raised against that survivor, but it does not affect any other survivor's recovery.

Section 768.21, Florida Statutes, adds that "all potential beneficiaries of a recovery for wrongful death, including the decedent's estate, shall be identified in the complaint," with their relationships to the person who died.

Who the survivors are

Section 768.18(1), Florida Statutes, says: "'Survivors' means the decedent's spouse, children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters." It includes a mother's child born outside marriage, and a father's child born outside marriage only if he recognized a responsibility for the child's support. If you are not sure whether you count as a survivor, ask a lawyer.

Who the personal representative is

Florida's Probate Code, the laws for handling an estate after death, defines a personal representative in section 731.201(28), Florida Statutes, as "the fiduciary appointed by the court to administer the estate," the role once called an executor or administrator. The court's grant of that authority is called "letters of administration."

How the court chooses

Section 733.301, Florida Statutes, sets the order of preference.

• With a will: first the person the will nominates, or who is nominated under a power the will gives (or that person's successor); then a person chosen by a majority in interest of those entitled to the estate; then a devisee, meaning someone named in the will to receive property. If more than one devisee applies, the court may choose the one "best qualified."
• Without a will: first the surviving spouse; then the person chosen by a majority in interest of the heirs; then the heir nearest in degree. If more than one applies, the court may choose the one "best qualified."

Heirs, under section 731.201(20), are the people, including the surviving spouse, who are entitled to the property of the person who died under Florida's laws for estates without a will.

Who can serve

Under section 733.302, any person who is "sui juris," meaning legally able to act for themselves, and was a Florida resident when the person died can serve, subject to the limits that follow. Under section 733.303, a person cannot serve if they have been convicted of a felony, have been convicted anywhere of abuse, neglect, or exploitation of an elderly person or disabled adult, are mentally or physically unable to do the duties, or are under 18. Section 733.304 limits which people whose permanent home is outside Florida can serve, covered below.

Who files and who benefits in your family's situation?

These are general examples, not advice about your family's case.

If there is a will

The person the will nominates has first preference, but it is still a court appointment, and that person must meet the rules on who can serve.

If there is no will

The surviving spouse has first preference, then the person a majority in interest of the heirs chooses, then the heir nearest in degree. Who the heirs are depends on Florida's laws for estates without a will, so ask a lawyer if you are unsure.

What each survivor may recover

Each survivor may recover the value of lost support and services, from the injury to the death and into the future, reduced to present value (today's value of future money). A surviving spouse may also recover for lost companionship and protection and for mental pain and suffering from the date of injury, and what other family members may recover is explained in Who gets the money in a Florida wrongful death case?

How each share stays separate

Under section 768.22, Florida Statutes, the amounts awarded to each survivor and to the estate must be stated separately in a verdict. Under section 768.21(7), everything awarded to the estate is subject to the claims of creditors who have followed the probate law's requirements for claims.

What else do families ask about who can sue?

Can a sibling file a wrongful death lawsuit in Florida?

A brother or sister does not file the lawsuit in their own name; the personal representative does. A sibling, including an adoptive brother or sister, counts as a survivor only if they were partly or wholly dependent on the person for support or services. A sibling can still be appointed personal representative, for example when there is no will, no surviving spouse, and a majority in interest of the heirs chooses them, and a sibling who lives outside Florida can qualify.

What if family members disagree about the case?

Under section 768.25, Florida Statutes, while the lawsuit is pending, a settlement of the amount, or of how it is split among the beneficiaries, does not take effect without the court's approval if any survivor objects to it or if it affects a survivor who is a minor or legally incompetent. If the family cannot agree on who should be personal representative, the court follows the order of preference in section 733.301, described above.

Can a relative who lives outside Florida be the personal representative?

Sometimes. Under section 733.304, someone not domiciled in Florida, meaning their permanent home is elsewhere, can serve only if they are the legally adopted child or adoptive parent of the person who died; related to that person by "lineal consanguinity," a direct line of descent such as a parent, child, or grandchild; that person's spouse, brother, sister, uncle, aunt, nephew, or niece, or someone related by lineal consanguinity to one of them; or the spouse of someone who qualifies under this rule. The limits in section 733.303, such as the felony and under-18 rules, apply to everyone.

What should your family do now?

• Find out whether your loved one left a will and who it nominates.
• Start the court case to appoint a personal representative early. Under section 733.101, Florida Statutes, a Florida probate case, whether to probate a will or to appoint a personal representative, belongs in the county where the person who died was domiciled; if they had no Florida domicile, it belongs in any county where their property is located. For someone whose permanent home was in Brevard County, that is Brevard County.
• Check that the person you have in mind can serve under section 733.303.
• List every family member who may be a survivor and how each is related to your loved one, because the complaint must name them.
• Keep receipts for medical or funeral bills a family member paid, since a survivor who paid medical or funeral expenses caused by the injury or death may recover them. Keep records of the support and services your loved one provided.
• Watch the deadline. Under section 95.11(5)(e), Florida Statutes, a wrongful death lawsuit must be filed within two years. That deadline does not apply to a wrongful death lawsuit against an individual for an intentional wrongful act causing death described in section 782.04 or section 782.07 (murder and manslaughter); that lawsuit may be filed at any time, and no arrest, criminal charge, or conviction is required first. That rule took effect May 11, 2010, and reaches earlier deaths only if the claim was not already time-barred, meaning too late to file, on that date. Under section 768.28, Florida Statutes, before a wrongful death lawsuit against the state or one of its agencies or subdivisions, the claim must be presented in writing to the Department of Financial Services within 2 years after the claim accrues, meaning arises. More detail is in How long do I have to file a wrongful death lawsuit in Florida?
• For the first days after a death, see What should a family do after a loved one dies in an accident?

Talk to a Melbourne wrongful death lawyer

We are sorry for your loss. Douglas R. Beam, P.A. is a personal injury law firm in Melbourne, Florida. If your family is not sure who should be the personal representative or who counts as a survivor, we can talk it through in a free consultation.

Call us at (321) 723-6591, or use the contact form on this site. Our office is at 25 West New Haven Avenue, Suite C, Melbourne, FL 32901.

Sources

• Section 768.19, Florida Statutes
• Section 768.20, Florida Statutes
• Section 768.18, Florida Statutes
• Section 768.21, Florida Statutes
• Section 768.22, Florida Statutes
• Section 768.25, Florida Statutes
• Section 731.201, Florida Statutes
• Section 733.101, Florida Statutes
• Section 733.301, Florida Statutes
• Section 733.302, Florida Statutes
• Section 733.303, Florida Statutes
• Section 733.304, Florida Statutes
• Section 95.11, Florida Statutes
• Section 768.28, Florida Statutes
• Section 782.04, Florida Statutes (murder)
• Section 782.07, Florida Statutes (manslaughter)
• Chapter 2010-45, Laws of Florida