No family is prepared for this. A spouse, parent, or child is killed in a crash, a fall, a violent attack on poorly secured property, or a workplace or product failure. In the weeks that follow, the family is arranging a funeral, handling bills, and fielding calls from insurers, often while a criminal case or a medical examiner's review is still open.
This guide explains what to do first and how Florida's Wrongful Death Act is organized, so that the family can make decisions without losing rights by accident.
1. Request the official records of the death
Start collecting the documents that establish what happened:
- certified copies of the death certificate;
- the police crash or incident report, with the agency and case number;
- the medical examiner's report and any autopsy findings, if an examination was done;
- hospital and emergency medical service records from the final injury; and
- any 911 recordings, which some agencies keep for limited periods.
If a criminal investigation is open, write down the detective's name and the prosecutor's office handling it. The criminal case and the civil claim are separate, but the criminal file often contains the most complete account of the events.
2. Preserve the physical evidence and video
Depending on how the death occurred, the key evidence may be a vehicle, a product, a property condition, or video. Do not let a vehicle be salvaged or a product be thrown away. Ask family members not to discard clothing, phones, or personal items recovered from the scene. Video from businesses, homes, and traffic cameras is often overwritten within days, so preservation letters should go out as early as possible. When a death is caused by a vehicle, Florida's crash report rules and driver duties apply (§§ 316.062 and 316.066).
3. Have a personal representative appointed
Florida's wrongful death claim is not brought by each family member separately. "The action shall be brought by the decedent's personal representative," who recovers for the benefit of the survivors and the estate (§ 768.20). If the decedent left a will naming a personal representative, that person usually petitions the probate court. If not, a family member can ask the court for appointment. Opening the estate is often the first legal step, because without a personal representative there is no one with authority to file the claim.
The decedent's own injury claim does not continue separately; when a person dies from the injury, a pending personal injury action abates and the wrongful death claim takes its place (§ 768.20).
“The action shall be brought by the decedent's personal representative,”
§ 768.20
4. Identify the survivors under Florida's definition
The statute defines "survivors" as "the decedent's spouse, children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters" (§ 768.18(1)). "Minor children" means children under 25 years of age (§ 768.18(2)), which is older than most families expect.
Make a list of every person who may qualify, with ages and contact information, and note anyone who relied on the decedent for money or household help. One claim is brought for all of them, so the personal representative needs a complete list.
“survivors”
§ 768.18(1)
5. Gather the financial and household records
The damages in a Florida wrongful death case are tied to specific categories, and each requires proof. Collect:
- tax returns, pay records, and benefit statements for the decedent;
- records of support the decedent provided to each family member;
- a description of household services the decedent performed, such as childcare, home repair, driving, and caregiving;
- medical bills from the final injury; and
- funeral and burial invoices, with proof of who paid them.
6. Speak with one voice to insurers
Insurers often contact a grieving family early, sometimes with an offer. Do not give recorded statements or sign releases. Ask the family to route every call to the personal representative and the lawyer. A single point of contact prevents conflicting statements and protects the claim for everyone.
The Florida rules that matter
- When the claim exists. A wrongful death claim lies "When the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty" of another, if the decedent could have recovered damages had he or she lived (§ 768.19).
- Who brings it. The personal representative brings the action for the survivors and the estate (§ 768.20).
- What survivors can recover (§ 768.21). Each survivor may recover the value of lost support and services, with future losses reduced to present value (§ 768.21(1)). A surviving spouse may recover for loss of companionship and protection and for mental pain and suffering (§ 768.21(2)). Minor children, and all children if there is no surviving spouse, may recover for lost parental companionship, instruction, and guidance and for mental pain and suffering (§ 768.21(3)). Each parent of a deceased minor child may recover for mental pain and suffering, and the parents of an adult child may do so only if there are no other survivors (§ 768.21(4)). A survivor who paid medical or funeral expenses may recover them (§ 768.21(5)).
- What the estate can recover. The estate may recover the decedent's lost earnings from injury to death, less lost support of survivors, and in some circumstances the loss of prospective net accumulations, as well as medical and funeral expenses charged to the estate (§ 768.21(6)).
- Medical negligence. Where the death arises from medical negligence, adult children and the parents of an adult child cannot recover the companionship and mental pain and suffering damages described above (§ 768.21(8)).
- A survivor's own fault. A defense that would reduce or bar one survivor's recovery applies to that survivor only, not to the others (§ 768.20).
- Deadline to sue. "An action for wrongful death" must be brought within two years (§ 95.11(5)(e)).
- Government defendants. If a government agency is responsible, the wrongful death claim must be presented in writing to the Department of Financial Services "within 2 years after the claim accrues," and the agency's failure to resolve it within 90 days is treated as a denial (§ 768.28(6)(a) and (d)). Those steps must be taken before suit.
“When the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty”
§ 768.19
Your checklist
- Obtain certified death certificates and the police and medical examiner reports.
- Preserve vehicles, products, personal items, and video.
- Start the probate process to appoint a personal representative.
- List every potential survivor, with ages and dependence on the decedent.
- Collect income, support, household services, medical, and funeral records.
- Route all insurer contact to the personal representative and the lawyer.
- Call a lawyer early; the two-year deadline runs regardless of the probate timeline.
How we handle these cases
We coordinate the wrongful death claim with the probate process so the personal representative has authority in time, preserve the evidence of how the death occurred, and document each survivor's losses within the categories the statute allows. We keep the family informed through a single point of contact. Josef Timlichman Law, PLLC is a Florida trial firm handling cases throughout the state, including Miami-Dade, Broward, Palm Beach, Tampa, Orlando, and Jacksonville. Meetings are by appointment only. Call 305-748-3789.
This article is general information, not legal advice for your situation. Reading it does not create an attorney-client relationship. Past results do not guarantee a similar outcome.