What Is the Wrongful Death Statute in Florida?

The Florida Wrongful Death Act lets a defined group of family members recover money when someone dies because of another person’s negligence or intentional act. Only the personal representative of the deceased’s estate can file the lawsuit, but the damages are split between the estate itself and the individual survivors the statute recognizes. Most claims must be filed within two years of the death, and the amount each family member can recover depends on their relationship to the deceased.¹

Who the Statute Recognizes as a Survivor

The Act limits “survivors” to the deceased’s spouse, children, and parents. Other blood relatives and adoptive siblings can also qualify, but only if they were partly or wholly dependent on the deceased for support or services.² A sibling who lived independently has no claim. A cousin who relied on the deceased for rent might.

Florida defines a “minor child” as anyone under 25, not 18. That matters because minor children can recover non-economic damages that adult children often cannot. When no spouse survives, all children, including those 25 and older, can recover for lost parental companionship, instruction, guidance, and mental pain and suffering. When a spouse does survive, only children under 25 get those non-economic damages. Children 25 and older are limited to the value of lost support and services.³

Parents of a deceased minor child can recover for mental pain and suffering. Parents of a deceased adult child can recover the same, but only if no other survivors exist.³

One boundary worth stating plainly: unmarried partners, including long-term domestic partners, have no standing under the Act. Florida does not recognize common-law marriage, and the statute confines spousal recovery to a legal surviving spouse.

Who Files the Lawsuit

Individual survivors cannot sue on their own, even if they stand to recover the largest share. The personal representative of the deceased’s estate is the only person with authority to file, and the complaint must identify every potential beneficiary and describe each one’s relationship to the deceased.¹

The representative owes fiduciary duties to all beneficiaries while gathering evidence, hiring attorneys, and negotiating. If any survivor objects to a proposed settlement or how it will be divided, the court must approve the deal before funds are distributed. Court approval is also required whenever a minor or incompetent person is among the survivors. When survivors disagree about apportionment, any party can ask the judge to hold a hearing and make a binding decision.⁴

What Damages the Statute Allows

The Act creates two separate pools: one for the estate and one for individual survivors.

Estate Damages

Lost earnings the deceased would have made between the date of injury and the date of death, reduced by what would have gone to support the survivors.
Net accumulations, meaning the savings and wealth the deceased would reasonably have built over a remaining lifetime, reduced to present value. Net accumulations are only available when the deceased left a spouse or lineal descendants, or when the deceased was not a minor child, no survivor can recover lost support, and a parent survives.
Medical and funeral expenses that became a charge against the estate or were paid on the deceased’s behalf.

Estate awards can be reached by creditors who properly filed claims in probate. Damages paid directly to individual survivors cannot.³

Survivor Damages

Every survivor can recover the value of lost support and services they received from the deceased, plus the present value of future support they would have received. Beyond that baseline, the statute layers extra damages by relationship:

A surviving spouse recovers loss of companionship and protection plus mental pain and suffering, dating back to the date of injury.
Children under 25 recover for lost parental companionship, instruction, and guidance plus mental pain and suffering.
Children 25 and older recover those same non-economic damages only when there is no surviving spouse.
Parents of a minor child recover for mental pain and suffering. Parents of an adult child recover those damages only when no other survivors exist.

Families sometimes assume all children are treated the same. The statute does not treat them the same when a spouse survives.³

When Punitive Damages Are Possible

Punitive damages are available in Florida wrongful death cases, but the standard is high. The family must show by clear and convincing evidence that the defendant acted with intentional misconduct or gross negligence. A punitive claim cannot be included in the original complaint; it requires a separate motion supported by evidence, and the court decides whether to allow the claim to proceed.⁵

Punitive awards are usually capped at three times compensatory damages. If the defendant acted solely for unreasonable financial gain and decision-makers actually knew the risk, the cap rises to four times compensatory damages or $2 million, whichever is greater. When the defendant specifically intended to harm the victim, there is no cap at all.⁶

The Two-Year Filing Deadline

The general statute of limitations for a Florida wrongful death claim is two years from the date of death.⁷ A case filed after that window will almost certainly be dismissed.

One major exception: when the death resulted from murder or manslaughter, there is no time limit. A civil wrongful death claim based on an intentional killing can be filed at any point, and it does not require an arrest, criminal charges, or a conviction first.⁷

Two situations change how the clock runs. The 90-day pre-suit period required for medical malpractice claims tolls the limitations period while it runs. Claims against government entities have their own notice requirement that must be satisfied within the two-year window.

When the Deceased Was Partly at Fault

Florida uses modified comparative negligence. If the deceased shared blame for the incident that caused death, damages are reduced by their percentage of fault. If the deceased was more than 50 percent at fault, recovery is barred entirely.⁸

The 50 percent bar does not apply to wrongful death claims arising from medical negligence. In a medical malpractice case, the award is reduced by the patient’s percentage of fault, but the family is not shut out entirely even if a jury finds the patient more than half responsible.⁸

Extra Rules for Medical Malpractice Deaths

Wrongful death claims based on medical malpractice carry their own pre-suit requirements. Before filing, the personal representative must deliver a written notice of intent to sue to each prospective defendant. A mandatory 90-day pre-suit investigation period then begins, during which the provider or insurer must reject the claim, offer a settlement, or propose arbitration. Silence is treated as a rejection. The two-year limitations period is tolled while this 90 days runs.⁹

Medical malpractice claims also restrict who can recover non-economic damages. Adult children of the deceased cannot recover for lost parental companionship or mental pain and suffering in these cases, regardless of whether a spouse survives. The restriction does not exist in other wrongful death claims, and it catches many families by surprise.¹⁰

Extra Rules When the Defendant Is a Government Entity

When the responsible party is a state agency, county, city, or other government subdivision, sovereign immunity rules add extra steps. The family must file a written claim with the responsible agency, and for state-level claims, also with the Department of Financial Services. For a wrongful death, that written notice must be filed within two years of the death, and it is a condition for proceeding with the lawsuit.¹¹

Recovery against a government entity is capped at $200,000 per person and $300,000 per incident. A jury can award more, but anything above those caps can only be paid through a claims bill passed by the Florida Legislature, which is a political process with no guaranteed outcome. Punitive damages are not available against government entities at all.¹¹

How Wrongful Death Awards Are Taxed

Compensatory damages received because of a physical injury or death are generally excluded from federal gross income under Internal Revenue Code Section 104(a)(2).¹² That exclusion covers the main categories under the Florida statute: lost support, lost companionship, mental pain and suffering, and net accumulations.

Punitive damages are different. They are generally taxable as ordinary income.¹³ A narrow federal exception exists for wrongful death cases in states where only punitive damages are available, but that exception does not help in Florida because the Act provides for compensatory damages. Plan for a tax bill when a punitive award arrives.

1
Florida Senate. Florida Statutes 768.20 – Parties
2
The Florida Legislature. Florida Statutes 768.18 – Definitions
3
Justia. Florida Statutes 768.21 – Damages
4
The Florida Legislature. Florida Statutes 768.25 – Court Approval of Settlements
5
The Florida Legislature. Florida Statutes 768.72 – Pleading in Civil Actions, Claim for Punitive Damages
6
The Florida Legislature. Florida Statutes 768.73 – Punitive Damages, Limitation
7
FindLaw. Florida Statutes 95.11 – Limitations Other Than for Recovery of Real Property
8
Florida Senate. Florida Statutes 768.81 – Comparative Fault
9
The Florida Legislature. Florida Statutes 766.106 – Notice Before Filing Action for Medical Negligence
10
Official Internet Site of the Florida Legislature. Florida Statutes 768.21 – Damages
11
The Florida Legislature. Florida Statutes 768.28 – Waiver of Sovereign Immunity in Tort Actions
12
Office of the Law Revision Counsel. 26 USC 104 – Compensation for Injuries or Sickness
13
Internal Revenue Service. Tax Implications of Settlements and Judgments