Who Can File a Wrongful Death Suit in Florida?

by | Jul 30, 2020 | blog, Wrongful Death | 0 comments

People at funeral consoling each other.

Losing a loved one is a life-changing event. Time and time again, victims of this tragedy experience further suffering when learning that their loss may have been preventable or caused by the negligence of another person or company. In this situation, the family is legally entitled to pursue a wrongful death claim. If you believe the death of a loved one was caused by the wrongdoing of another individual, read on to learn if you can file a wrongful death suit under Florida law in the event of this kind of loss.

What is a Wrongful Death Lawsuit? 

A wrongful death lawsuit is a civil lawsuit and claim filed by the Personal Representative of the Decedent’s Estate, alleging that the defendant is responsible for death by negligence, wrongful conduct or wrongdoing. The defendant in a wrongful death claim can be any person or company liable for the death.

A wrongful death may be the result of the following: 

Who are Wrongful Death Act “Survivors?”

Survivors is a legal term for spouses, minor children, adult children, and blood relatives who were dependent on the decedent. According to the Florida Wrongful Death Act, minor children survivors are under 25, while adult children are considered 25 and older. These individuals can make claims for the damages (see section 768.21) caused by the support or service provided.

There are two categories of damages a survivor could recover in a wrongful death case:

  • Economic damages are costs for medical expenses, funeral expenses, or loss of current and future earnings.
  • Non-economic damages, also known as human damages, or pain and suffering damages, are damages done to the relationship or companionship between the living and decedent. 

Legislative Requirements for Wrongful Death Claims in Florida

The spouse and children under age 25 always have the first right to make a claim. According to section 768.18 of the Florida Statutes, if the decedent child is 25 or older, no matter the relationship or damages suffered, the state does not recognize those damages under Florida law. If there is no spouse or minor child of the decedent, then the adult child (age 25 or older) can pursue a claim. If there is no spouse or child, then the parents can make a claim. Keep in mind that spouses and minor children cannot claim non-economic damages within a medical malpractice case. If there are no survivors, the law will not recognize the losses.

These laws are controversial and complex, and it is common for clients to be surprised by what is permitted and what is not. Losing a loved one is a hardship that everyone who is connected to the decedent experiences, yet Florida’s laws do not always allow them to recover damages. An experienced wrongful death attorney can help prepare you for what to expect with your case.

Is There a Time Limit to File a Wrongful Death Claim?

In Florida, there is a two-year window from the date of death to file a wrongful death lawsuit. However, under particular circumstances such as fraud, concealment, or misleading information purposely being provided, this period may be extended. Regardless, the maximum period to file a wrongful death claim is seven years. An attorney can assist in determining when the statute of limitations expires for your case.

How to File a Wrongful Death Claim in Florida

According to Florida law, the decedent’s representative, named in the decedent’s will or estate plan, must file the wrongful death claim. If there happens to be no will or estate plan, then the representative will be chosen by the court based on the surviving family members and Florida state law. The representative recovers all damages in the name of the decedent’s estate and the legal survivors.

How to Prove a Wrongful Death Claim

To prove a wrongful death case, you will need to establish that a person or company committed acts of negligence or wrongful conduct leading to the death of your loved one. You will be required to gather evidence about the responsible party and then prove the estate and surviving family members’ have suffered.

As a representative of the decedent’s estate, you hold the right to access medical records at the required hospital. You will need to sign a document stating you are related to the decedent, and within a specific time frame, the hospital is required by law to hand the medical records to you. Depending on the hospital, this experience can be more or less complicated.

How is Settlement Money Distributed in a Wrongful Death Lawsuit?

It is part of the firm’s duty to peacefully negotiate among the surviving family members and determine if the family agrees on how to divide the recovered money. If there is no agreement, there will be a trial in probate court to determine how to divide the money. The main goal is always to achieve a peacefully negotiated settlement. If this turns out to not be the case, an option is to settle the case in court. 

Wrongful Death in a Medical Malpractice Case

If a doctor were to commit malpractice that resulted in a patient’s death, the heirs may not be permitted to claim wrongful death. Legislation has registered special protections for doctors while practicing medicine that the rest of the public does not have. Although, if a doctor fails to diagnose a condition, or if the doctor is reckless with the care, and that leads to the death of a patient, a wrongful death lawsuit may be possible. In these circumstances, it is important to hire an attorney who has not only taken to trial wrongful death cases but who has also litigated cases involving wrongful death because of medical malpractice.

A wrongful death claim does not require an autopsy to be proven. All that is needed to establish a wrongful death is evidence of negligence or wrongful conduct leading to the death.

Contact a Wrongful Death Attorney in Florida

During the painful times that come with the loss of a loved one, it is common for emotions to make it difficult to focus on legal matters or damages. Contacting an experienced wrongful death attorney who can guide you will significantly ease your burden during this mourning period and lead to a higher chance of a peaceful settlement. If you believe you have a wrongful death case, contact Matthews Injury Law to set up a free consultation.