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Who Can File a Wrongful Death Lawsuit in Florida?


Florida’s wrongful death lawsuit allows family members to hold a person responsible for the death of their loved one. Wrongful death lawsuits are distinct from criminal suits, so the state prosecutor will not file a wrongful death claim. If you prevail, then the defendant must pay compensation but cannot be sent to jail.

At Earnhart Law, we have sought compensation in many wrongful death lawsuits, and one question we receive is who can file the lawsuit. Read on for more information.

The Personal Representative Files the Lawsuit

According to Fla. Stat. 768.20, the wrongful death lawsuit shall be filed by the estate’s personal representative. This person is responsible for administering the deceased person’s estate, and he or she should be identified in your loved one’s will.

If your loved one did not have a will, then the probate court should name a personal representative. Usually, it will be the spouse or child of the deceased. If a child died, then one parent is often appointed to serve.

Surviving Family Members Receive Compensation

Although the personal representative files the suit, family members will receive compensation. The compensation they receive will depend on their relationship to the deceased.

For example, a spouse can receive:

  • The value of lost services and support from the date of injury or death
  • The loss of protection and companionship
  • Mental pain and suffering from the date their spouse was injured

Minor children of the deceased can receive compensation for the loss of parental guidance, instruction and companionship, as well as for mental pain and suffering. If your loved one left behind no spouse, then adult children can also receive this compensation.

Parents of minor children can receive compensation for mental pain and suffering, and parents of adult children can also receive compensation if there are no other survivors.

The Estate will Also Recover Compensation

Every person who dies has an estate, which is made up of the assets the deceased owned at death. A valid wrongful death claim is also an asset, so the estate can collect certain compensation, such as:

  • Any medical or funeral expenses charged to the estate.
  • Loss of earnings from the date of injury to death. For example, if your loved one was in a crash in October and died two months later, then the lost wages for those two months are recoverable.

After the estate recovers these sums, it will distribute them according to the will or, if there was no will, according to Florida’s intestacy statute. However, any amounts the estate recovers are subject to creditor claims. For example, if the deceased owed someone $50,000, then any sums obtained in a wrongful death suit for the estate can be used to pay off the debt.

Contact Earnhart Law with Questions

If you have lost a loved one, a lawsuit is probably the last thing you want to think about. However, grieving family members must think about their financial futures and holding the person responsible for the death accountable.

At Earnhart Law in Delray Beach, we can help you bring a wrongful death lawsuit for compensation. Please contact us by calling 561-265-2220. We offer a free consultation.


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