Filing a Wrongful Death Claim in Florida: Eligibility & Possible Compensation

When you lose a loved one due to someone else’s negligence in Tampa or Orlando, your world shatters in ways you never imagined possible. You’re not just grieving; you’re drowning in medical bills, funeral expenses, and confusing insurance calls while trying to hold your family together. Meanwhile, you’re asking difficult questions like: “Should I be thinking about legal action?” or “Do I have the right to file a claim?” If you’re having these thoughts, understanding how to file a wrongful death lawsuit can feel like an impossible task, but we’re here to help. We’ll guide you through Florida’s wrongful death statute and assist in securing the financial support you need while honoring your loved one’s memory.

How Does Florida’s Wrongful Death Statute Work? Finding Your Legal Footing

Florida’s wrongful death laws, found in Florida Statutes Chapter 768, Sections 768.16-768.27, exist to help Tampa and Orlando families seek justice when negligence takes a loved one’s life. Under Florida Statute 768.19, a wrongful death occurs when someone dies due to another person’s “wrongful act, negligence, default, or breach of contract or warranty.” Florida has two types of legal actions available:

1. Wrongful Death Claims: Compensate qualifying survivors—spouses, children, parents, and dependent relatives—for lost companionship, protection, mental pain and suffering, and financial support.
2. Survival Actions: These belong to the deceased’s estate, recovering damages for what your loved one experienced between the injury and death, such as medical expenses, lost income, and pain and suffering.

Note: Both are typically combined in a single lawsuit, streamlining the legal process for grieving families.

Who Can File a Wrongful Death Lawsuit in Florida? Eligibility Requirements

Understanding how to file a wrongful death lawsuit begins with knowing who can take legal action during this difficult time. While Florida Statute 768.20 requires only the personal representative of your loved one’s estate to file the lawsuit, representing all qualifying survivors and the estate. Florida Statute 768.18 defines survivors as:

• Married surviving spouses are entitled to companionship, protection, and services.
• Minor children who can recover loss of parental companionship, instruction, and guidance.
• Adult children who can recover damages if no surviving spouse exists.
• Parents can claim damages for a deceased minor or adult child without a spouse or children.
• Blood relatives or adoptive siblings with limited recovery for medical and funeral expenses if no other survivors exist.

Critical Nuance: Unmarried domestic partners cannot file wrongful death claims, regardless of relationship length or shared children. Stepchildren can only recover if legally adopted by the deceased, and out-of-state family members moving to Tampa or Orlando maintain their rights if they qualify under Florida’s survivor definitions.

How to File a Wrongful Death Lawsuit in Florida? Step-by-Step Process

Step 1: Open Probate and Secure Legal Authority (First 30 Days).

The first step is establishing legal standing through Florida’s probate process. An estate must be opened in probate and a personal representative appointed before filing a wrongful death lawsuit:

• File Petition for Administration: Submit a petition with the circuit court to open the estate and appoint the personal representative.
• Receive Letters of Administration: The probate court issues “letters of administration,” giving the personal representative legal authority to act on behalf of the estate.
• Begin Creditor Notice Process: Conduct a diligent search for creditors and publish notice as required by probate law.

Step 2: Identify Eligible Survivors and Preserve Evidence (Days 1-60).

Determine who qualifies as survivors (noted above), and preserve evidence:

• Collect medical records, accident reports, and witness statements.
• Photograph accident scenes, document injuries, and secure surveillance footage.
• Identify all liable parties and insurance coverage.
• List all eligible survivors for the lawsuit filing.

Step 3: Retain An Attorney For Investigation & Damage Calculation (Months 1-6).

Hire our experienced attorney to calculate your entitled damages, including funeral expenses, lost financial support, loss of companionship, pain and suffering, and medical bills. We work with economic experts to establish lifetime financial losses, determine the full extent of liable parties and insurance coverage, and calculate economic damages like lost earnings, medical expenses, and future care needs.

Step 4: File the Wrongful Death Lawsuit (Before 2-Year Deadline).

The personal representative can file the wrongful death lawsuit within two years from the date of death in the appropriate circuit court (Hillsborough County for Tampa, Orange County for Orlando) only after receiving letters of administration. The complaint must outline facts, claims, defendants, and damages sought, with cases assigned under the new 2025 Florida Rules of Civil Procedure to either streamlined tracks (12 months to trial) or general tracks (18 months to trial).

Step 5: Serve Defendants and Initial Proceedings (Days 1-120).

Defendants must be served with lawsuit documents within 120 days of filing by an authorized officer or court-appointed person, after which defendants have 20 days to respond (30 days for government entities) by filing an answer or motion to dismiss. Under the new 2025 rules, parties must serve initial discovery disclosures within 60 days after service of the complaint.

Step 6: Discovery Phase (Months 3-12).

Both parties exchange information through interrogatories (30-interrogatory cap), requests for production, and depositions where the personal representative and survivors testify about their relationship with the deceased, while expert witnesses provide testimony on medical causation and economic damages, all subject to Florida’s 30-day response deadlines and proportionality limits.

Step 7: Pre-Trial Motions and Mediation (Months 6-15).

Either party may file summary judgment motions if facts are undisputed, requiring a nonmovant response including supporting factual positions within 40 days under amended Rule 1.510; hearings must be set at least 10 days after this deadline unless otherwise ordered. Meanwhile, court-ordered mediation attempts to facilitate settlement before trial, and pre-trial conferences address trial issues, evidence, and settlement possibilities.

Step 8: Trial Preparation and Proceedings (Months 12-24+).

If no settlement is reached, parties prepare evidence, witnesses, and expert testimony for trial under new Florida rules requiring streamlined cases to be trial-ready in 12 months and general cases in 18 months, where a judge or jury formally determines liability and damages based on presented testimony and evidence.

Step 9: Post-Trial Motions and Appeals (Months 18-36+).

Parties may file post-trial motions for a new trial or to alter judgment, with notice of appeal required within 30 days of final judgment if legal, factual, or procedural errors occurred, potentially extending case resolution by 12-24 months through appellate court review.

Step 10: Collecting Judgment and Final Distribution (Final Phase).

If survivors win, the attorney helps collect judgment from defendants or insurers through post-judgment proceedings, requiring court approval for settlements involving minor children and the personal representative allocating proceeds among eligible survivors according to Florida Statute 768.21, including enforcement proceedings if defendants fail to pay voluntarily.

How Do Recent Legal Changes Affect This Process?

Florida’s 2023 tort reform legislation impacts wrongful death cases through modified comparative negligence rules that bar recovery if the deceased is over 50% at fault (except in medical malpractice cases), and accelerated timelines requiring cases to be trial-ready within 12-18 months under 2025 procedural rules. There are enhanced discovery requirements mandating initial disclosures within 60 days, and stronger insurance company defenses under HB 837.

What Compensation Is Available Under Florida’s Wrongful Death Statute?

Florida Statute 768.21 provides compensation for families who lost loved ones due to negligence, ensuring financial recovery addresses the practical and emotional losses you’re facing.

1. Economic Damages cover your family’s financial losses, including lost earnings and benefits your loved one would have provided throughout their expected lifetime (salary, bonuses, retirement contributions, health insurance), all medical expenses from emergency care to extended hospital stays, and reasonable funeral and burial costs.
2. Non-Economic Damages compensate for emotional losses, including loss of companionship and protection for surviving spouses, mental pain and suffering for immediate family members, loss of parental companionship and guidance for minor children, and the value of household services and support your loved one provided.
3. Punitive damages may be available under Florida Statute 768.72 when death resulted from intentional misconduct or gross negligence, allowing courts to award up to three times compensatory damages to punish wrongdoers and deter similar conduct.

The compensation reflects Florida’s recognition that while money cannot replace your loved one, it can provide the financial security needed to protect your family’s future.

FAQ About Florida Wrongful Death Claims

1. How Long Do I Have to File a Wrongful Death Lawsuit in Florida? You have two years from the date of death under Florida Statute 95.11. This deadline is absolute, so missing it means permanently losing your right to seek compensation.
2. What If There’s No Will or Estate Open? The court will appoint a personal representative (usually the closest family member) to file the lawsuit on behalf of survivors.
3. How Is Wrongful Death Compensation Divided Among the Family? The personal representative has discretion in allocation, with spouses and minor children typically receiving the largest share.
4. Do Wrongful Death Settlements Always Go Through Probate? Yes, wrongful death settlements are estate assets, subject to probate court oversight.

Get The Compassionate, Legal Support Your Family Deserves

Losing a loved one is devastating enough without having to move through Florida’s complex wrongful death statutes alone. At De Armas Law, we understand you’re dealing with overwhelming grief, funeral arrangements, and family responsibilities, so let us handle the legal details. Contact our Tampa office at 813-680-7777 or Orlando office at 407-362-7777 for a free, confidential consultation available 24/7.