Which Relatives Can File a Florida Wrongful Death Claim?

In Florida, only the personal representative of the deceased person’s estate can file a wrongful death lawsuit. Relatives do not file their own separate cases. Instead, the personal representative brings a single action on behalf of the estate and every eligible survivor, and under the Florida Wrongful Death Act those survivors can include a spouse, children, parents, and certain dependent relatives. What each survivor can recover depends on their relationship to the person who died, their age, whether other survivors exist, and, in some cases, how the death happened.

At the Law Offices of Scott Sobol, we have represented more than 1,000 clients and their families in personal injury matters, including families working through the wrongful death claim process after fatal car crashes, truck accidents, and other preventable deaths across Broward County and South Florida. Below, we explain who files, who counts as a survivor, what each survivor may recover, the filing deadline, and a medical negligence rule the Florida Legislature has tried to change in each of the last two sessions.

Who Can File a Wrongful Death Claim in Florida?

Under section 768.20, Florida Statutes, a wrongful death action is brought by the decedent’s personal representative, who recovers for the benefit of the decedent’s survivors and the estate. A spouse, child, or parent cannot file a separate wrongful death lawsuit in their own name, even if they suffered the greatest loss.

The personal representative is the person appointed by the probate court to administer the estate. Often this is the person named in the will. If there is no will, or the named person cannot or will not serve, the court appoints someone under Florida’s probate rules, frequently a surviving spouse or another close family member. Being named in a will is usually only the first step, since the person generally needs a court appointment before acting for the estate.

Section 768.20 also addresses a situation many families do not expect. If the injured person had already filed a personal injury lawsuit and then died from those injuries, that pending lawsuit abates, and the claim moves forward as a wrongful death action brought by the personal representative.

Which Relatives Count as Survivors Under Florida Law?

The personal representative files, but the recovery is largely for the survivors. Section 768.18 defines who qualifies, and the wrongful death complaint must identify every potential beneficiary and allege their relationship to the decedent. The statutory survivors are:

• Spouse: The decedent’s surviving husband or wife.
• Children: The decedent’s children, with special rules for “minor children,” which Florida defines as children under 25 years of age for wrongful death purposes.
• Parents: The decedent’s mother and father, whose recovery depends on the decedent’s age and whether other survivors exist.
• Dependent relatives: Blood relatives and adoptive brothers and sisters who were partly or wholly dependent on the decedent for support or services.
• Children born outside of marriage: Included as survivors of their mother, and of their father only if he had recognized responsibility for the child’s support.

The under-25 definition is one of the most misunderstood parts of the Act. A 22-year-old college student who loses a parent is a “minor child” under the wrongful death statute even though they are an adult for nearly every other legal purpose, and that classification affects what they can recover.

What Each Survivor May Recover Under Section 768.21

Florida does not use a single damages pool that family members split however they choose. Section 768.21 assigns specific categories of damages to specific survivors and to the estate.

Lost Support and Services

Every survivor may recover the value of lost support and services from the date of the decedent’s injury to death, plus future loss of support and services reduced to present value. The survivor’s relationship to the decedent, the decedent’s probable net income available to that survivor, and the replacement value of household services the decedent provided can all be considered.

The Surviving Spouse

A surviving spouse may also recover for loss of the decedent’s companionship and protection, and for mental pain and suffering from the date of injury.

Children

Minor children, meaning children under 25, may recover for lost parental companionship, instruction, and guidance, and for mental pain and suffering. If there is no surviving spouse, all of the decedent’s children may recover these damages regardless of age, subject to the medical negligence exception discussed below.

Parents

Each parent of a deceased minor child may recover for mental pain and suffering. Parents of an adult child, meaning a child 25 or older, may recover for mental pain and suffering only if there are no other survivors, and that recovery is also subject to the medical negligence exception.

Medical and Funeral Expenses and Estate Damages

A survivor who paid medical or funeral expenses caused by the injury or death may recover them. The personal representative may recover, for the estate, the decedent’s lost earnings from injury to death, medical or funeral expenses charged against the estate, and in certain circumstances the loss of prospective net accumulations the estate would likely have built. Awards to the estate are subject to valid creditor claims under probate law, while damages awarded to an individual survivor belong to that survivor.

The Medical Negligence Exception in Section 768.21(8)

When a death results from medical negligence, as defined in section 766.106(1), section 768.21(8) removes two categories of damages. Adult children cannot recover for lost parental companionship, instruction, guidance, or mental pain and suffering, and parents of an adult child cannot recover for mental pain and suffering. Because “minor child” means under 25, this rule generally affects children 25 and older who lose a parent to medical negligence, and parents who lose a child 25 or older. It does not, by its terms, remove other categories such as lost support and services or expenses a survivor paid.

The Legislature has voted to repeal this provision, but it has not become law. In 2025, HB 6017 passed both chambers and was vetoed by the Governor on May 29, 2025. In 2026, HB 6003 passed the House on January 15, 2026, but it died in the Senate Rules Committee on March 13, 2026, and its Senate companion, SB 1700, also died in committee. As of September 30, 2026, section 768.21(8) remains in the 2026 Florida Statutes. Because lawmakers may take the issue up again, families facing a medical negligence death should confirm the current law with an attorney before assuming which damages are available.

Medical negligence death claims also carry procedural requirements under chapter 766, including presuit investigation and notice steps, and they can be subject to the medical malpractice limitations rules. Those deadlines should be identified early.

How Long Do You Have to File a Wrongful Death Claim in Florida?

Under section 95.11, Florida Statutes, an action for wrongful death must generally be commenced within two years, measured from the date of death rather than the date of the accident. In the 2026 statutes this appears at section 95.11(5)(e). Negligence-based personal injury claims arising on or after March 24, 2023 are also subject to a two-year limit, which matters when a person survives for a period before passing away. You can read more in our overview of Florida’s deadline to file an injury lawsuit.

Two years can pass quickly. A personal representative may need to be appointed first, records must be gathered, and in medical negligence cases, presuit steps must be completed. Evidence such as surveillance footage and witness memories also fades. Missing the deadline generally ends the claim permanently, so it is wise to speak with an attorney well before it approaches.

How Fault Can Affect a Wrongful Death Recovery

Florida’s 2023 tort reform law, HB 837, replaced pure comparative negligence with a modified standard. Under section 768.81(6), in a negligence action to which the section applies, a party found greater than 50 percent at fault for his or her own harm may not recover any damages. In wrongful death cases arising from ordinary negligence, such as car crashes, fault attributed to the person who died can reduce the recovery and, above that 50 percent line, may bar it. Section 768.81(6) expressly does not apply to personal injury or wrongful death actions arising out of medical negligence under chapter 766. Our guide to Florida’s modified comparative negligence rule explains how fault percentages are applied.

How Settlements Are Approved and Divided

Because the personal representative acts for several people at once, Florida builds in protections. Under section 768.25, while a wrongful death action is pending, a settlement as to amount or apportionment among the beneficiaries is not effective without court approval if any survivor objects or if it affects a survivor who is a minor or incompetent. This keeps one family member from resolving the case in a way that shortchanges another.

A common misconception is that wrongful death recoveries are divided under Florida’s inheritance laws. That is not how survivor damages work. Damages for a survivor’s own losses are awarded to that survivor under section 768.21, while damages recovered for the estate pass through the estate. If your family is also dealing with probate or questions about who should serve as personal representative, our article on what surviving family members need to know about Florida wrongful death lawsuits covers the broader process.

Seek Help From a Florida Wrongful Death Lawyer at the Law Offices of Scott Sobol

Losing a family member to someone else’s carelessness is overwhelming, and the legal questions arrive at the worst possible time. Scott Sobol has more than 20 years of experience in personal injury law, has represented more than 1,000 clients and their families, and is admitted to practice in Florida, Illinois, and Texas. We can help identify the correct personal representative, confirm which relatives qualify as survivors, calculate each category of damages, and track every deadline that applies.

We handle wrongful death cases on a contingency fee, with terms and costs set out in a written agreement, and your first consultation is free. To talk with our team about your family’s situation, fill out our contact form.

Every case is different. Past results and prior experience do not guarantee a similar outcome in any future matter, and this article is general information rather than legal advice for your specific situation.

Frequently Asked Questions About Florida Wrongful Death Claims