When a person’s death is caused by the wrongful act, negligence, default, or breach of contract or warranty by another individual or company—including incidents occurring on navigable waters—Florida law determines who may be entitled to compensation. These legal rights and procedures are governed by statute, specifically the Florida Wrongful Death Act, found in Sections 768.16 through 768.26 of the Florida Statutes. The section addressing damages is Section 768.21.

Wrongful death claims are filed through the decedent’s estate by a court-appointed Personal Representative, who brings the claim on behalf of the individuals entitled to compensation. In many cases, the Personal Representative is a surviving family member who is also eligible to receive damages. The Personal Representative retains the attorney to pursue the claim.

Under the Florida Wrongful Death Act, individuals entitled to damages are referred to as “survivors.” In addition, the Estate itself may recover damages under certain conditions.

Determining who qualifies as a survivor and what types of damages may be recovered involves multiple factual variables and is not governed by a simple formula. Below is an outline of common scenarios and the types of damages that may be awarded under each:

SCENARIO 1: Decedent is Married – No Surviving Children

Surviving Spouse May Recover:

• Loss of decedent’s companionship and protection
• Mental pain and suffering (from the date of injury)
• Loss of support and services (from the date of injury to the date of death, with interest)
• Future loss of support and services (from the date of death, reduced to present value)
• Medical and funeral expenses paid by the survivor

SCENARIO 2: Decedent is Married – With Surviving Children

Surviving Spouse May Recover (same as above):

• Loss of decedent’s companionship and protection
• Mental pain and suffering
• Loss and future loss of support and services
• Medical and funeral expenses (if paid by the spouse)

Surviving Children May Recover:

• Loss of support and services (past and future, as above)
• Minor children (under age 25, per §768.18(2))—or all children if there is no surviving spouse—may also recover:
  • Loss of parental companionship, instruction, and guidance
  • Mental pain and suffering (from the date of injury)

SCENARIO 3: Parent Dies – Surviving Children, No Surviving Spouse

All Surviving Children May Recover:

• Loss of support and services (past and future)
• Loss of parental companionship, instruction, and guidance
• Mental pain and suffering (from the date of injury)

SCENARIO 4: Child Dies – Surviving Parents, No Spouse or Children

For a Deceased Minor Child:

• Mental pain and suffering (from the date of injury)
• Medical and funeral expenses (if paid by the parents)

For a Deceased Adult Child (Only if No Other Survivors Exist):

• Mental pain and suffering
• Loss of support and services (past and future)
• Medical and funeral expenses (if paid by the parents)

Damages Recoverable by the Personal Representative (on Behalf of the Estate)

• Loss of earnings from the date of injury to the date of death (minus support provided to survivors, excluding contributions in kind), with interest
• Loss of prospective net accumulations to the estate (if reasonably expected but for the death), reduced to present value
  • Available if:
    • There is a surviving spouse or child, or
    • The decedent was not a minor (under age 25), no support damages are recoverable, and a parent survives
• Medical or funeral expenses charged to the estate or paid on behalf of the decedent (unless already claimed by a survivor)

Important Exceptions in Medical Malpractice Cases

• Adult children cannot recover for loss of parental companionship in medical malpractice claims
• Parents of a deceased adult child cannot recover for mental pain and suffering in such cases

If you, like many, question the fairness of these exceptions, consider contacting your state legislators to advocate for change.

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Contact us toll free at 866-785-GALE or by email (jgale@jeffgalelaw.com) for a free, confidential consultation to learn your legal rights.

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.