Jeffrey P. Gale, P.A. /// Florida’s “Free Kill” Law Remains Alive

Our law firm has written extensively about what has infamously become known as the “Free Kill” law.” More formally, the law is codified at section 768.21(8), Florida Statutes, a provision of Florida’s Wrongful Death Act, ss. 768.16-768.26.

Florida’s Wrongful Death Act traces its origins to an English statute enacted in 1846 known as Lord Campbell’s Act. That landmark legislation created, for the first time, a statutory cause of action for the wrongful death of a person resulting from the wrongful act, neglect, or default of another. Prior to the enactment of Lord Campbell’s Act, English common law did not recognize a civil cause of action for damages arising from a person’s death, even when the death was caused by another’s wrongful conduct.

Florida first adopted its modern Wrongful Death Act in 1972, when the Legislature enacted Chapter 72‑35, which created Sections 768.16–768.26 of the Florida Statutes. These sections have been amended over time, but 1972 is the year the statutory framework was originally established. It allows recovery by the decedent’s estate, and certain other specified persons, known as “survivors,” for the wrongful death of a person caused by the wrongful act or negligence of another, regardless of whether such act also constitutes a felony. Claimants are strictly limited to the damages allowed under the statutory scheme of recovery.

As originally enacted, the Act did not permit non-dependent adult children–adult is defined in s. 768.18(2) as being 25 years of age or older–to recover damages for the loss of a parent’s support and companionship, or for the mental pain and suffering resulting from a parent’s wrongful death. Likewise, it did not allow grieving parents to recover such non-economic damages for the wrongful death of an adult child.

This changed in 1990 with the enactment of CS/SB 324. The legislation amended the Act by expanding the rights of adult children to recover damages for lost parental companionship, instruction, and guidance, as well as for mental pain and suffering, when the decedent left no surviving spouse. The amendment also authorized each parent of an adult child to recover damages for mental pain and suffering resulting from the child’s wrongful death when there were no surviving relatives with a superior statutory claim.

Unfortunately, the bill’s sponsors were compelled by opposition from the insurance and medical industries to accept a significant exception to these otherwise sensible reforms. While the compromise may have been politically necessary to secure passage of the legislation, it created a substantial limitation on the expanded rights afforded by the amendment. That exception is codified in section 768.21(8), Florida Statutes, which provides as follows:

“The damages specified in subsection (3) shall not be recoverable by adult children and the damages specified in subsection (4) shall not be recoverable by parents of an adult child with respect to claims for medical negligence as defined by s. 766.106(1).”

The exception has been controversial since its inception. In recent years, public opposition to what has become known as Florida’s “Free Kill” law has intensified, placing increasing pressure on elected officials to eliminate this inequitable provision.

In 2024, both chambers of the Florida Legislature passed legislation repealing the exception by margins sufficient to override a gubernatorial veto. Governor Ron DeSantis nevertheless vetoed the bill. Despite possessing the votes necessary to override that veto, the Republican-controlled Legislature declined to do so.

Many observers viewed this sequence of events as political theater. The Legislature appeared willing to cast symbolic votes in favor of repeal, thereby signaling support for grieving families, but unwilling to take the final step necessary to make repeal a reality. The mechanism existed; the political will did not.

As a result, Floridians continue to suffer the consequences of the Free Kill law. Our office receives inquiries on a weekly basis from adult children whose elderly parents died as a result of alleged medical negligence. Less frequently, but no less tragically, we also hear from parents seeking justice for the wrongful death of an adult child caused by medical malpractice. For many of these families, Florida law continues to deny any meaningful civil remedy.

When these individuals contact our office—many of whom already know that the law affords them no remedy—we encourage them to become advocates for change by sharing their stories with elected officials and the media. The growing momentum for reform is largely attributable to the efforts of these families, together with attorneys and other advocates throughout the state who have worked to bring attention to the injustice of the law.

Unfortunately, the insurance and medical industries possess significant political influence and resources, enabling them to mount strong opposition to legislative reform. As a result, efforts to repeal the exception have thus far fallen short, despite substantial public support for change.

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Contact us today at (305) 758-4900 or by email for a free consultation to learn your legal rights. If we accept your case, we will represent you on a contingency fee basis — meaning you pay no upfront costs. Our fee is collected only if we obtain a favorable recovery on your behalf. If there is no recovery, you owe nothing.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.

Our firm is grateful for the many cases we receive through referrals from fellow attorneys, and we routinely pay referral fees to our referring counsel in accordance with applicable ethical rules.