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In Florida, a case or lawsuit for the wrongful death of a person is controlled by Chapter 768 of the Florida Statutes and related case law. By Florida law, a wrongful death action is brought or filed by one Plaintiff on behalf of the estate of the decedent and the statutory survivors of the decedent. See Section 768.20 and Section 768.21, Florida Statutes. The Plaintiff in a wrongful death action is the personal representative of the estate. The personal representative can be a relative and / or a beneficiary of the estate of the person who was wrongfully or negligently killed by the negligence or wrongdoing of another person or entity. The personal representative is sometimes named in the will of the decedent. If there is a no will, a probate Judge can appoint a personal representative upon petition of a person seeking to act or serve as the personal representative of the estate. It is important to consult with a Florida personal injury attorney regarding wrongful death matters or issues because these type of cases can be and are complicated by a variety of laws and statutes on point.
The personal representative, who serves as the “figurehead” on the case, acts on behalf of the estate of the decedent and serves to seek damages for both the estate and the statutorily defined survivors of the estate which are set forth in Section 768.21, Florida Statutes. Here are the relatives who may seek damages for the death of a loved one in the State of Florida:
Surviving Spouse. If the person was married at the time of death, the surviving spouse can seek damages for the loss or the decedent’s companionship and protection. In addition, the surviving spouse can seek damages or compensation for mental pain and suffering.
Minor Children. If there is a spouse, minor children can also be awarded or compensated for the loss of parental companionship, instruction, and guidance. In addition, a minor child can seek damages or compensation for mental pain and suffering from the loss or death of a parent. For purposes of Florida’s wrongful death laws, a minor child is defined as a child under the age of 25 years of age.
Adult Children. If there is no surviving spouse OR if the decedent was single or divorced as the time of death, adult children, which are defined by the Florida wrongful death laws as children 25 and older, can seek damages and compensation for loss of parental companionship, instruction, and guidance. Mental pain and suffering can also be awarded to an adult child for the loss or death of a parent.
Parents of a Minor Child. Each parent of a minor child can recover damages or compensation for pain and suffering as a result of the wrongful death of a minor child which again is defined as a child under the age of 25 years old.
Parents of an Adult Child. Each parent of an adult child can recover damages or compensation for pain and suffering as a result of the wrongful death of an adult child assuming that there are no other survivors (i.e. a spouse or children of the decedent).
There is an exception for medical malpractice cases in the State of Florida. In order to be able to pursue loss of companionship and pain / suffering type of damages, there must be either a surviving spouse and / or minor children to be able to pursue these damages in a Florida medical malpractice case.