Wrongful Death Accident Lawyer

By Lorne Kaiser & Steven Romanello, Kaiser Romanello, P.A. | Florida personal injury attorneys since 2002 | Last reviewed: June 2026

The Florida Wrongful Death Act (§§ 768.16–768.27)

Florida wrongful death claims exist only because the legislature created them. At common law, a victim's claim died with them. Florida's Wrongful Death Act (originally passed in 1972, codified at Florida Statutes §§ 768.16–768.27) carved out an exception: when negligence, recklessness, or intentional conduct causes someone's death, certain surviving family members can recover damages for their loss — and the estate can recover the deceased's economic losses.

Importantly, Florida wrongful death law is more restrictive than most states. Specific elements:

• The lawsuit must be filed by the personal representative of the deceased's estate — not the family directly
• Damages are recovered for the benefit of specifically-defined "survivors" and the estate
• Who qualifies as a "survivor" — and what damages they can recover — depends on their relationship to the deceased
• Florida's modified comparative negligence rule (HB 837) applies — if the deceased was 51% or more at fault, the claim is barred entirely
• The statute of limitations is 2 years from the date of death

Who Files the Wrongful Death Claim

Under Florida law, only the personal representative of the deceased's estate may file a wrongful death lawsuit. This is true even when the family members who will receive the damages disagree about whether to pursue the claim.

If the deceased had a will

The personal representative is the person named as executor in the will. The probate court will issue Letters of Administration appointing them.

If the deceased died without a will (intestate)

The probate court appoints a personal representative — usually the surviving spouse, an adult child, a parent, or a creditor, in that order of priority under Fla. Stat. § 733.301.

The personal representative files a single lawsuit on behalf of all eligible survivors and the estate. Any settlement or verdict is allocated among them by the court.

Who Can Recover Damages Under Florida Law

The "survivors" who can recover damages are tightly defined by Fla. Stat. § 768.18. What each survivor can recover depends on their category:

The "Florida Free Kill" Loophole

One of Florida's most criticized legal provisions is what advocates call the "Florida Free Kill" loophole. Under current law:

• Adult children (25 and older) of a deceased adult parent cannot recover non-economic damages for the death IF there is no surviving spouse
• Parents of a deceased adult child cannot recover non-economic damages if the adult child had a surviving spouse or minor children

This loophole is especially significant in medical malpractice wrongful death cases. A single unmarried 40-year-old killed by hospital negligence may leave parents and adult siblings with virtually no path to compensation for their loss — even if the negligence is undisputed.

The Florida legislature considered repealing this provision in 2024 (HB 6017, vetoed) and 2025 (HB 6033, status pending). Until repealed, this loophole significantly affects how Florida wrongful death cases are evaluated.

If your loved one's death falls into this category, an experienced Florida wrongful death attorney can still pursue available economic damages through the estate and explore alternative liability theories. Call (844) 877-8679 for a free case evaluation.

Damages You Can Recover in a Florida Wrongful Death Case

Economic damages (estate)

• Medical expenses incurred between injury and death
• Funeral and burial expenses
• Lost wages and benefits between injury and death
• Lost net accumulations (when applicable — calculated by economist)

Non-economic damages (survivors)

• Mental pain and suffering of survivors
• Loss of companionship, protection, instruction, and guidance
• Loss of consortium (for surviving spouse)

Lost support and services (survivors)

• Value of financial support the deceased would have provided
• Value of services (childcare, household labor, family management) the deceased would have provided
• Calculated to life expectancy of the deceased

Punitive damages

• Available when defendant's conduct was grossly negligent or intentional
• Standard: clear and convincing evidence under Fla. Stat. § 768.72
• Capped at the greater of $500,000 or 3× compensatory damages (with exceptions)

Common Causes of Florida Wrongful Deaths

Florida's 2-Year Wrongful Death Deadline

Under Fla. Stat. § 95.11(4)(d), a Florida wrongful death lawsuit must be filed within 2 years of the date of death. This is shorter than most personal injury statutes.

Critical evidence — medical records, scene investigations, witness statements, the at-fault party's insurance information — disappears within weeks, not years. Consultation should happen within days of the death whenever possible.

Comparative Negligence in Wrongful Death Cases

Florida's modified comparative negligence rule (HB 837, effective March 2023) applies to wrongful death cases:

• If the deceased was 50% or less at fault, the survivors can still recover — but damages are reduced by the deceased's percentage of fault
• If the deceased was 51% or more at fault, the claim is barred entirely — no recovery

This is why defense attorneys aggressively push to assign fault to the deceased. A motorcycle wrongful death case where the rider was 52% at fault produces zero recovery — even if the at-fault driver was clearly negligent.

The deceased can't testify. Defense will exploit that. An experienced Florida wrongful death attorney builds the case around physical evidence, witness testimony, and accident reconstruction to counter that strategy.

Punitive Damages in Florida Wrongful Death Cases

Punitive damages punish defendants for outrageous conduct beyond ordinary negligence. They are available in Florida wrongful death cases when:

• The defendant's conduct was grossly negligent (substantial indifference to life or safety) OR intentional
• The plaintiff proves entitlement by clear and convincing evidence (a higher standard than the ordinary preponderance)
• The motion to plead punitive damages is granted by the court after a reasonable evidentiary showing

Florida caps punitive damages under Fla. Stat. § 768.73 at the greater of $500,000 or 3× compensatory damages, with exceptions for cases involving financial motive ($2 million cap) or intentional harm (no cap).

Common Florida cases where punitive damages are pursued: drunk-driving fatalities, fatigued commercial truck driver crashes (FMCSA violations), defective product death cases, and intentional violence cases.

What to Do After a Loved One's Wrongful Death

1. Preserve all evidence. Vehicles, medical records, photographs, the deceased's clothing — nothing should be discarded or repaired until an attorney has documented it.
2. Obtain a certified death certificate. You will need multiple original copies for insurance, probate, and the lawsuit.
3. Do NOT speak with the at-fault party's insurance carrier. They will offer a quick settlement that locks in pennies-on-the-dollar value.
4. Do NOT accept any check from an insurance company. Cashing a check often constitutes acceptance of a settlement.
5. Do NOT post about the death on social media. Defense attorneys subpoena social media to undermine non-economic damages.
6. Identify who will be the personal representative. If there is no will, the surviving spouse usually has priority. Consult a probate attorney if there is family disagreement.
7. Call a Florida wrongful death attorney within days. Critical evidence including surveillance footage, vehicle event data recorders, and trucking company logs is destroyed within 7-30 days.

Why Choose Kaiser Romanello

Kaiser Romanello, P.A. has represented Florida injury victims and survivors since 2002. We have recovered over $30 million for our clients across catastrophic injury and wrongful death cases. Our wrongful death practice is built around three commitments:

• Comprehensive damages analysis. Florida wrongful death damages are technical — economic loss calculations require an economist, future support calculations require actuarial review, and non-economic damages require careful presentation. We retain the right experts from day one.
• Aggressive fault attribution. Defense will try to assign fault to the deceased. We rebuild the scene with reconstruction experts, witness deposition, and physical evidence to defeat that strategy.
• Trial preparation as the default. Wrongful death cases are too important to be lost at settlement. Insurance carriers pay fair value only when they believe the case will reach a jury. Volume firms get lowballed. We don't.

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Frequently Asked Questions