Wrongful Death

Created in 1972, and later amended in 2003, sections 768.16 through 768.26, Florida Statutes, are known as the “Florida Wrongful Death Act.” The intent of this body of law is to shift the loss from the survivors to the wrongdoer.

The act is “remedial.” § 768.17, Fla. Stat. This is significant. According to the Florida Supreme Court, “[c]ourts should not interpret remedial statutes strictly or narrowly to thwart the intent of the Legislature.” E.A.R. v. State, 4 So. 3d 614, 629 (Fla. 2009) (emphasis in original). The Wrongful Death Act also states that this law “shall be liberally construed.” § 768.17, Fla. Stat.

For lawyers and litigants, the way a statute is “construed” is extremely important. Florida law does not recognize a common law cause of action for wrongful death. Instead, recovery rights are created by statute. And generally, “statues in derogation of the common law are to be construed strictly.” Essex Ins. Co. v. Zota, 985 So. 2d 1036, 1048 (Fla. 2008). But here, since the statute specifies that it is remedial and it is to be liberally construed, to the extent there is any ambiguity in the Wrongful Death Act, the courts must interpret the statute so that the intent is carried out.

The foundational “elements” of a wrongful death case—where the death occurred as a result of another person’s negligence—are nearly the same as any other personal injury case. “To establish a cause of action for negligence in a wrongful death action, a plaintiff must allege and prove (1) the existence of a legal duty owed to the decedent, (2) breach of that duty, (3) legal or proximate cause of death was that breach, and (4) consequential damages.” Jenkins v. W.L. Roberts, Inc., 851 So. 2d 781, 783 (Fla. 1st DCA 2003).

As stated in section 768.19, Florida Statues, “[w]hen the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person, including those occurring on navigable waters, and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued, the person or watercraft that would have been liable in damages if death had not ensued shall be liable for damages as specified in [the Wrongful Death Act] notwithstanding the death of the person injured . . . .” (Emphasis added.)

What makes wrongful death cases unique, under the law, is that the Wrongful Death Act changes certain aspects of the case.


The Wrongful Death Act limits who can bring these types of actions. Under section 768.20, Florida Statutes, the suit must be initiated by the personal representative of the decedent’s estate. In other words, to bring a wrongful death case, you have to first open an “estate” in probate court. (Unlike most firms who handle wrongful death, the Law Offices of Evan M. Rosen, P.A. also handles probate.)

Once the estate is opened and the court appoints a personal representative, that personal representative is obligated to “recover for the benefit of the decedent’s survivors and estate all damages, as specified in [the Wrongful Death Act], caused by the injury resulting in death.” § 768.20, Fla. Stat. It’s important to note that you cannot maintain both an action for personal injury and wrongful death. § 768.20, Fla. Stat. (“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.”)

As to the wrongdoer, if they die before or during the wrongful death case, an estate for the wrongdoer would have to be opened in probate court. And the wrongdoer’s personal representative would become the defendant in the underlying wrongful death case. § 768.20, Fla. Stat.


The most significant difference between a wrongful death case, and any other negligence case, is the measure of damages, i.e. what a “survivor” can recover.

A “survivor” is defined as “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.” § 768.18, Fla. Stat. Survivors also include a “child born out of wedlock of a mother, but not the child born out of wedlock of the father unless the father has recognized a responsibility for the child’s support.” Id.

In a wrongful death lawsuit, the law requires that you identify all potential “survivors”/beneficiaries of the recovery, and their relationship to the person who died. Damages vary based on the relationship between the survivor and the decedent.

The following damages may be recovered in a wrongful death case: loss of companionship/pain and suffering; loss of support and services, loss of earnings and net accumulations, medical and funeral expenses, and litigation expenses.

Loss of Companionship/Pain and Suffering

A surviving spouse may recover for loss of companionship, protection, and for emotional pain and suffering from the date of injury. § 768.21(2), Fla. Stat. Minor children—and all children of the decedent if there is no surviving spouse—can recover for loss of parental companionship, instruction, guidance, and for emotional pain and suffering from the date of injury. § 768.21(3), Fla. Stat. Under the Wrongful Death Act, minor children are those under twenty-five years old. § 768.18(2), Fla. Stat.

In the event there is a common event/act or series of acts that results in both spouses dying within thirty days of one another, the Wrongful Death Act provides that each spouse is considered to have been predeceased by the other. In this instance, probate estates would have to be open for both spouses.

Under 768.21(4), each parent who survives the death of their minor child can recover for their emotional pain and suffering from the date of injury. Parents of adult children can also recover emotional pain and suffering, so long as there are no other survivors.

Medical and Funeral Expenses

Any survivor who has paid medical or funeral expenses for the decedent can be reimbursed for those. The personal representative can also recover for the estate, any medical or funeral expenses because of the decedent’s injury or death, that have become a claim against the estate or that were paid by or on behalf of decedent.

Lost Earnings/Net Accumulations

So long as there is a surviving spouse or lineal descendants—or if the decedent is over twenty-five years old, there are no recoverable lost support and services, and there is a surviving parent—the personal representative can recover, for the estate, lost earnings and/or net accumulations.

Lost earnings are recoverable from the date of injury to the date of death, plus interest. But the cost of financial support to the survivors must be reduced from this sum.

Under section 768.18(5), “net accumulations” are the expected net business or salary income, including pension benefits, that the decedent probably would have retained as savings and left as part of their estate if they had lived to their normal life expectancy. Florida’s Wrongful Death Act defines “net business or salary income” as the probable gross income after taxes that remains after subtracting the decedent’s personal expenses and monetary support to the survivors. Id. Net business or salary income does not include income from investments continuing after death. Id.

The personal representative can recover net accumulations, which reasonably might have been realized, but for the wrongful death. The sum for this must be reduced to present value.

It is very important to be aware of any other potential claims against the estate. The personal representative’s claims for the estate remain subject to proper creditors’ claims made under probate law.

Litigation Expenses

Attorneys’ fees and other litigation expenses are paid by the personal representative and proportionally deducted from the survivors’ recoveries. But any expenses incurred for the benefit of a particular survivor, or for the estate, will be paid out of that particular recovery.

Loss of Support and Services

Each survivor may recover the value of “lost support and services” from the date of the decedent’s injury to the date of their death, with interest. § 768.21, Fla. Stat. Survivors can also recover future loss of support and services from the date of death, reduced to present value. Id.

Under section 768.18, “support” includes contributions and money, and “services” are “tasks, usually of a household nature, regularly performed by the decedent that will be a necessary expense to the survivors of the decedent.” Services vary based on the relationship and facts of each case. Id.

To properly evaluate the loss of support and services, the jury can consider the relationship between the survivor and the decedent, the amount of the decedent’s net income available for distribution to each survivor, and the amount it would cost to replace any “services” the decedent provided. § 768.21, Fla. Stat. To calculate the duration of future losses, the jury can also consider the life expectancies of the survivors and the decedent and, for any survivors who are minors, the amount of time left until they turn eighteen. Id.

It is also important to note here that if the decedent’s spouse gets remarried, that information is admissible in evidence.

Further, if a survivor dies before final judgment is entered, their recovery for lost support and services can only run through the date of their death. And in this instance, the personal representative of the decedent pays the amount recovered to the personal representative of the deceased survivor.

Exceptions for Medical Malpractice

The Wrongful Death Act creates exceptions for medical malpractice cases. In those cases, adult children cannot recover for lost parental companionship, instruction, and guidance, or for emotional pain and suffering. And, in medical malpractice/medical negligence cases, parents of an adult child cannot recover emotional pain and suffering.


There are a few other important issues in the Wrongful Death Act.

Defenses to a survivor’s recovery are generally unique to each survivor. Under section 768.20, a defense that bars or reduces one survivor’s recovery, does not affect any other survivor’s recovery.

Under section 768.22, verdict forms are unique in wrongful death cases. The amount recovered by each survivor, and by the estate, must be separately stated in the verdict.

For the amounts recovered by minors and people who are deemed “incompetent,” the court must provide protections for those recoveries under Florida’s Guardianship Law.

Lastly, the court has to approve certain wrongful death settlements. If settlement is reached while a wrongful death case is pending, and one of the survivors objects, the court must approve the settlement. The court also has to approve settlements when a survivor is a minor or is someone deemed “incompetent.”

If you or someone you know needs an attorney to help seek justice for a wrongful death—a death caused by someone else’s negligence—please call us at 754-400-5150 or contact us online. Let the Law Offices of Evan M. Rosen serve you!

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