Florida's Wrongful Death Act: Compensatory, Not Punitive
Unlike Alabama's punitive-only wrongful death statute, Florida's Wrongful Death Act (Florida Statute § 768.16–768.26) is compensatory—damages are designed to compensate surviving family members for their actual losses. This means the deceased's earning capacity, the survivors' mental pain and suffering, loss of companionship, and other concrete losses directly affect the value of the claim.
Who Can Bring a Florida Wrongful Death Claim
Only the personal representative of the deceased's estate can file the lawsuit, but the damages are awarded to surviving family members. Under Florida law, eligible survivors include: the surviving spouse; children (including adult children in some circumstances); parents of a deceased minor or adult child in limited cases; and siblings if there is no other survivor. The personal representative files the action for the benefit of these survivors and the estate.
Damages in Florida Wrongful Death Cases
Florida wrongful death damages include: the deceased's lost net income from the date of injury to death; the present value of future lost earning capacity; loss of support and services provided to the family; mental pain and suffering of survivors; medical expenses before death; and funeral and burial expenses. The surviving spouse and minor children are generally entitled to the broadest damages. Adult children can recover loss of parental companionship in limited circumstances depending on the facts.
The 2023 Florida Malpractice Wrongful Death Change
A significant 2023 Florida legislative change (HB 6B) affected wrongful death claims in medical malpractice cases. Previously, adult children of malpractice victims could not recover pain and suffering damages—a unique restriction in Florida's wrongful death statute. The 2023 law eliminated this restriction for medical malpractice wrongful death cases, allowing adult children to recover for lost parental companionship, instruction, and guidance. This substantially increases the value of medical malpractice wrongful death cases involving deceased parents of adult children.
The Two-Year Filing Deadline
Florida wrongful death claims must be filed within two years of the date of death. For malpractice-related deaths, the two-year clock runs from the date of death, not discovery of malpractice. Given the complexity of appointing a personal representative and retaining expert witnesses, families should consult a Florida wrongful death attorney promptly after a suspicious death.
Frequently Asked Questions
Can a common-law spouse recover in a Florida wrongful death case?
Florida does not recognize common-law marriage formed after 1968. Only a legally married spouse can recover as a "surviving spouse" under the Florida Wrongful Death Act. Unmarried domestic partners have very limited or no recovery rights, which is an important consideration for long-term unmarried couples.
Are wrongful death settlements taxable in Florida?
Under federal tax law, most wrongful death settlement proceeds are excluded from income—the IRS treats them as compensation for physical injury. Portions attributable to lost business income or punitive damages (rare in Florida) may be treated differently. Consult a tax advisor before finalizing settlement structure, especially in large cases.
Can I bring both a survival action and a wrongful death action in Florida?
Yes. A survival action is a separate claim for damages the deceased personally suffered between injury and death—pain, suffering, and medical bills during that period. These damages belong to the estate. A wrongful death action compensates survivors. Both can be pursued by the personal representative in the same lawsuit.