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Understanding the Florida Wrongful Death Statute

Published at January 7, 2019 by administrator.

The death of a loved one is a devastating experience. This is especially true when someone’s wrongful act or negligence causes a loved one’s death. In these cases, while difficult, it is essential to file a Florida wrongful death claim as soon as possible due to the statute of limitations. The Florida wrongful death statute is vital to assure that all conditions are investigated thoroughly, all evidence is preserved effectively, and all parties accountable for a person’s death are identified.

According to statute 768.19 of the Florida Wrongful Death Act, “When 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”, the person or watercraft responsible for the death can be held liable, and the personal representative of a deceased person can bring a wrongful death action in Florida’s courts.

Wrongful death claims may arise in many different incidents such as car accidents, medical accidents, slip and fall, fires, defective products, and more. South Florida’s wrongful death statute will be considered for close family members of the deceased victim who wish to relieve the burden of emotional distress and expenses.

Who Can File a Wrongful Death Claim

When a loved one dies, their family members are left with several financial and emotional challenges that can be incredibly overwhelming. During this challenging time, a wrongful death attorney can help your family navigate the litigation process. These experienced professionals will handle your claim with empathy and ensure you receive maximum compensation for this negligent act.

Based on the Florida Wrongful Death Statute, a family member or the personal representative of the deceased’s estate are the only people who can file a wrongful death suit. In the cases that there is no estate plan, the personal representative will be determined by the court. The civil lawsuit is brought to court on behalf of the deceased person and the surviving family members.

Filing a Wrongful Death Claim

Understanding the steps that go into filing a wrongful death suit could be defined as complex, a professional could shed a light in easing the process. The steps within the wrongful death claim process include: wrongful death, hiring an attorney, filing the claim, gathering evidence, settlement negotiations, court proceedings.

1.Wrongful Death

Naturally, the victim of the wrongful death cannot fight their own case,  but a living family member may file a wrongful death claim on the decedent’s behalf. In Florida, to qualify as a plaintiff in a wrongful death suit, Individuals must be related to the decedent in one of the following ways:

  • Spouse
  • Children
  • Parents
  • Dependent blood relatives
  • Dependent adoptive brothers or sisters
  • A child born outside of wedlock of a mother
  • A child born outside of the wedlock of a father if it can be established that the father has taken responsibility for the child’s support.

First, the personal representative of the lawsuit must be determined for the deceased’s estates. Secondly, the surviving members should be identified. Finally, they must show proof of the damages suffered by the deceased caused by the person responsible. Under the Florida Wrongful Death law, wrongful death claims hold the wrongdoer’s party reliable for their actions while diminishing the losses suffered by the family members of the deceased victim.

2. Hiring an Attorney

The best way to handle a wrongful death claim is to hire a professional that fully comprehends what they’re up against; an attorney that will ease the process of the lawsuit. Finding the best person for the suit depends on several factors, including the attorney’s experience level in the specific area, the amount of time they devote to your case, as well as previous clients’ reviews on the attorney.

Although these are only a few considerations to keep in mind, it is important that you are confident about the attorney you choose to help with the wrongful death claim. The attorney will also have questions related to the death of the victim, that will help determine if they’re the right person to pursue the wrongful death claim.

3. Filing the Claim

Once you have hired the proper attorney, they will move forward with the wrongful death claim. Before starting with the case, the attorney will send a demand letter to the responsible party. This letter would appeal a monetary settlement from the party believed to be accountable.

If the accused party does not respond to the letter, the victims’ attorney will file a document of complaint against the party responsible. This document will give a description of the case against the wrongdoer including the facts supporting the legal claims, the venue for the legal actions, and the type of damages being sought after.

The court would then issue a summon against the responsible party. A summon would bring awareness to the accuser that they have been sued and allows a certain amount of time for when the person accountable for the death must answer the already issued upon the defendant.

Finally, the responsible party will provide a formal response to the accusation. This document will include the defendant’s argument against the claims made against them. The formal written statement may possibly assert why the accuser is not responsible for the damages requested in the complaint.

4. Gathering Evidence

In order to make compelling arguments for your case, it is necessary that your attorney gathers evidence of the negligence as soon as possible. This will allow the wrongful death claim to run smoothly and effectively. Your attorney may ask the people involved in the death and the family members’ closest to the deceased to take part in a deposition.

A deposition is an informal interview set up by an attorney to gather information about the deceased’s case. This is considered a pre-trial investigation, in which the answers are sworn statements that could be used in court. The proof needed for the wrongful death will be based on the specific circumstances surrounding the deceased.

5. Settlement Negotiation

It is possible that this case may not be taken to court. That would mean that a settlement has been agreed between both parties. The settlement agreement may come in the form of monetary payment from the defendant, to help cover the damages caused by their misconduct. In exchange for the compensation, the defendant may request to close the case indefinitely, giving up your rights to any further legal actions against them.

Before agreeing to a settlement, it is important to discuss your attorney the advantages and disadvantages of settling. There are factors that may be put into consideration, such as how the settlement funds would cover both the attorney’s fees and the wrongful death’s expenses, as well as the strength of the case allowing to proceed to litigation stage. In any case, your attorney is not authorized to approve any settlements before consulting with you prior.

6. Court Proceedings

If you and your attorney decide not to agree on settling, the wrongful death case will proceed to court. During the hearing, both parties will give an opening statement that will cover detailed facts of the death and how the defendant is liable. They will also present evidence that will be expected to prove the statements made. The evidence can be presented in the form of documents, pictures, witness testimony, and/or medical documentation.

After all statements and evidence have been evaluated, the court will need to decide whether or not the defendant is responsible for the death of your loved one. If the accused person is found guilty, you will be awarded compensation that will cover the damages caused by the negligence.

Recovering Damages

A Florida Wrongful Death claim may provide reparation for reimbursement that has been lost as the result of the death. Family members who file for a Florida wrongful death claims may be eligible for loss of earnings, loss of benefits, funeral and medical costs. Family members are also eligible to recover non-economic damages. In cases where the claim is made following the death of an adult, surviving family members may be entitled to recover the loss from mental pain and suffering, companionship, and protection determined from the date of the decedent’s death.

The damages recovered from a Florida wrongful death claim will be considered as part of the estate. Upon a successful trial, the personal representative retrieves the value of earnings lost between the time of the deceased person’s injury and time of death, and funeral expenses. The gains are then distributed to close family members of the deceased such as the victim’s spouse, children, or parents.

Statute of Limitations

When dealing with an unjustified death, it is essential that the wrongful death claim is filed within two years of the date of a person’s passing. This is called the statute of limitations. According to 95.11 Florida Statutes, the timeline to file a wrongful death claim in Florida for medical malpractice is within two years from the time the negligence is discovered or should have been discovered. “However, in no event shall the action be commenced later than four years from the date of the incident or occurrence out of which the cause of action accrued, except that this 4-year period shall not bar an action brought on behalf of a minor on or before the child’s eighth birthday.”

To avoid Florida’s court’s denial for a wrongful death claim, it is vital that you file the claim as soon as possible. There may be specifications of your case that may amend the amount of time allowed to file a claim. If your loved one has been the victim of wrongful death in Florida, be sure to contact an experienced wrongful death attorney that will help you determine the deadline set for the statute of limitations.


If you or a loved one has suffered from the wrongful death of a family member, you will want to consider the support of an attorney to determine your legal options and rights to recover eligible damages. Contact The Stafford Firm today for experienced Florida wrongful death attorneys who will advocate on your behalf.

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