Florida’s Free Kill Law: Standing, Recovery, and 2025 Repeal

Florida’s free kill law is the nickname for Section 768.21(8) of the state’s Wrongful Death Act, a provision that blocks adult children and the parents of adult children from recovering non-economic damages when medical negligence causes a death. In every other kind of wrongful death case in Florida, those same family members can sue for grief, mental pain and suffering, and loss of companionship. Medical malpractice is singled out and treated differently. When an unmarried patient over 25 with no children under 25 dies from a medical error, no one in the family has standing to claim those damages, and the case often never gets filed.¹

What Section 768.21(8) Actually Says

Florida’s Wrongful Death Act assigns different categories of damages to different survivors. A surviving spouse can recover for loss of companionship and protection and for mental pain and suffering. Minor children can recover for lost parental guidance, companionship, and mental pain and suffering. Parents of a deceased child can recover for mental pain and suffering under limited circumstances.¹

Subsection (8) carves out an exception for medical negligence. It strips adult children of the right to recover the damages described in subsection (3), and it strips parents of an adult child of the right to recover the damages described in subsection (4).¹ Surviving spouses and minor children keep their full rights. The restriction only bites when there is no spouse and no minor child in the picture.

The age line matters. Florida defines “minor children” as children under 25, not the ordinary age of majority.² A 24-year-old child of a deceased parent has full standing. A 25-year-old child does not, at least when the cause of death is medical negligence.

Who Loses the Right To Sue

Two groups are cut out of non-economic damages by the statute:

Adult children of the deceased, meaning anyone 25 or older, cannot claim lost parental companionship, guidance, or mental pain and suffering when a parent dies from medical negligence.
Parents of an adult child cannot claim mental pain and suffering when their child (25 or older) dies from medical negligence, even if the parent is the decedent’s closest surviving relative.¹

The emotional closeness of the relationship makes no difference. A daughter who spoke with her mother every day and an estranged son who had not visited in years land in the same place under the statute. And the same death caused by a drunk driver, a defective product, or almost any other form of negligence would leave those family members with a viable claim. It is medical malpractice, and only medical malpractice, that triggers the bar.

The people most often affected are older. A 70-year-old widow whose three children are in their 40s has no family member with standing for non-economic damages if she dies from a surgical error. A retiree who never married and has no children is in the same position, with only his parents left, and their claim is blocked too.

Who Still Has Standing

Two categories of survivors keep full rights to non-economic damages regardless of subsection (8):

A legally married surviving spouse can recover for loss of companionship and protection and for mental pain and suffering from the date of the injury.
Any child of the decedent under 25 can recover for lost parental companionship, instruction, guidance, and mental pain and suffering.¹

If either a spouse or a child under 25 exists, the free kill provision does not shut the case down. Even one qualifying survivor can turn an otherwise dead-end claim into one an attorney will take.

What the Estate Can Still Recover

The statute does not wipe out the wrongful death case entirely. The decedent’s personal representative can still file suit on behalf of the estate to recover economic losses.³ Those include:

Lost earnings from the date of injury through death, with interest, minus the decedent’s own support costs.
Lost net accumulations, meaning the wealth the decedent would have built over a remaining lifetime, reduced to present value, when certain survivor conditions are met.
Medical and funeral expenses that became a charge against the estate or were paid on the decedent’s behalf.¹

On paper, that list looks like a real case. In practice, the numbers rarely add up. A retired 72-year-old generates no lost earnings. Funeral costs might run $10,000 to $15,000. Medical bills for the negligent treatment are often already covered by Medicare or private insurance, shrinking the estate’s out-of-pocket losses further. The total recoverable amount frequently comes in too low to support the cost of the litigation.

Why the Cases Do Not Get Filed

Medical malpractice is one of the most expensive areas of civil practice. Expert witnesses charge hundreds of dollars per hour to review records and testify. Attorneys routinely spend between $50,000 and $100,000 on experts, medical record analysis, and depositions before a case reaches trial. Florida also imposes a mandatory presuit investigation and notification process under Section 766.106, which adds months and further expense before a complaint can be filed.⁴

When non-economic damages are unavailable and only modest estate losses remain, the economics collapse. A contingency-fee attorney cannot put $75,000 into a case to recover $12,000 in funeral expenses. Families are told the claim has merit but no lawyer will take it. That is where the “free kill” label comes from. The provider’s civil exposure shrinks to the point where a lawsuit is not economically rational, and accountability for the death effectively disappears.

The picture changes the moment a spouse or a child under 25 is in the family. Non-economic damages for loss of companionship and mental suffering can reach six or seven figures, which gives an attorney enough potential recovery to justify the investment. The medical facts of the case are the same either way. The statute changes the economics, and the economics decide whether the case gets filed.

The 2025 Repeal Attempt

The free kill law has been challenged repeatedly. Critics argue it creates a two-tiered system in which a patient’s marital and family status determines whether their death carries financial consequences for the provider who caused it. Supporters argue the provision keeps malpractice insurance premiums manageable and helps Florida retain physicians who might leave for states with lower liability exposure.

The most recent repeal effort was HB 6017, which passed both chambers of the Florida Legislature during the 2025 session. It would have removed the age-based restriction and let adult children and parents pursue non-economic damages in medical negligence cases the same way they can in every other wrongful death claim. Governor DeSantis vetoed the bill on May 29, 2025.⁵

Section 768.21(8) remains in force. Until the legislature passes another repeal bill and a governor signs it, families of unmarried adults over 25 with no children under 25 continue to face a legal system where medical negligence that kills their loved one carries effectively no civil liability for the emotional harm it caused.¹

1
Florida Legislature. Florida Code 768.21 – Damages
2
Florida Legislature. Florida Code 768.18 – Definitions
3
Florida Legislature. Florida Code 768.20 – Parties
4
Florida Legislature. Florida Code 766.106 – Notice Before Filing Claim for Medical Negligence
5
Florida House of Representatives. HB 6017 (2025) – Recovery of Damages for Medical Negligence