Who Can File a Wrongful Death Lawsuit in Florida?

Losing a loved one to someone else’s negligence is one of the most painful experiences a family can face. In the midst of grief, understanding your legal options is hard — let alone the procedural rules that govern them. One of the most common questions families ask is a basic one: who actually has the right to file a wrongful death lawsuit in Florida?

The answer is specific, and understanding it is essential to protecting your family’s rights.

Only the Personal Representative Can File

Under the Florida Wrongful Death Act, a wrongful death lawsuit must be filed by the personal representative of the decedent’s estate. The personal representative — sometimes called an executor in the context of a will — is the individual appointed to administer the deceased person’s estate.

This does not mean only one person can benefit from the lawsuit. The personal representative files on behalf of the estate and on behalf of all survivors — the family members the law designates as entitled to recover for their losses. The personal representative’s role is procedural: they are the party who initiates and manages the lawsuit. The proceeds flow to the estate and to the survivors according to the Act.

This structure means a surviving spouse who believes they have been wronged cannot simply walk into court and file a lawsuit in their own name. The lawsuit must go through the estate. If no personal representative has been appointed, one must be designated — typically through a probate proceeding.

Who Qualifies as a Survivor?

The Florida Wrongful Death Act defines “survivors” as the family members entitled to recover damages for their own losses resulting from the death. Survivors may include:

The Surviving Spouse

The deceased person’s spouse at the time of death is always a survivor under the Act. A surviving spouse may recover for loss of support and services, loss of companionship and protection, and mental pain and suffering.

Children of the Deceased

The deceased’s children — both minor and adult — may qualify as survivors. Minor children have particularly significant rights under the Act, including recovery for loss of parental companionship, instruction, and guidance, as well as mental pain and suffering.

When there is a surviving spouse, adult children may have more limited recovery rights. When there is no surviving spouse, adult children may recover for loss of support and services in appropriate circumstances. An attorney can advise on how the specific family structure affects each child’s potential recovery.

Parents of the Deceased

If the deceased was a minor child, the parents are survivors and may recover for their mental pain and suffering. If the deceased was an adult with no surviving spouse or children, the parents may also have claims.

Other Relatives

Blood relatives and adoptive siblings who were partly or wholly dependent on the deceased for support or services may also be survivors in some circumstances.

What Happens When There Is No Will?

When a person dies without a will — called dying intestate — Florida’s probate laws govern who is appointed as personal representative. The court typically appoints a close family member: a surviving spouse, adult child, or parent, depending on who is available and willing to serve.

If family members disagree about who should serve as personal representative, or if the decedent had no close relatives, a court may appoint an independent administrator. This adds time and complexity to the process — one more reason to consult an attorney early.

The wrongful death case cannot proceed until a personal representative is formally appointed. If your family has lost someone unexpectedly, an attorney can help initiate the probate process in parallel with the investigation and preparation of the wrongful death claim.

What If Multiple Family Members Want to Recover?

Because the personal representative files on behalf of all survivors, family members do not compete to “get there first.” The wrongful death lawsuit encompasses the claims of all eligible survivors. The personal representative has a fiduciary duty to act in the best interests of all survivors, not just their own.

In practice, this means that the personal representative and the attorney work together to identify and document the damages suffered by each survivor — the loss of a spouse’s companionship, the loss of a parent’s guidance for each child, and the economic losses to the household — and present them as part of a unified case.

The Role of the Estate’s Claim

In addition to the survivors’ individual claims, the estate itself has a claim for:

Medical and funeral expenses

Lost net accumulations — the earnings the decedent would have accumulated over their expected lifetime, after estimated personal expenses

These estate-level damages are recovered by the personal representative and pass through the estate according to its distribution rules — either by will or by Florida’s intestacy laws if there is no will.

The Statute of Limitations

Florida’s statute of limitations for wrongful death claims is two years from the date of death. This deadline applies whether or not the probate process has been completed. Do not wait until the estate is fully administered before contacting a wrongful death attorney — the legal clock does not pause.

A Compassionate Consultation, When You Need It Most

At HLM Injury Lawyers, we understand that a free legal consultation is the last thing on your mind in the depths of grief. But the decisions made in the weeks and months after a loved one’s death can permanently affect your family’s financial security. We approach every wrongful death case with the respect, discretion, and care your family deserves.

Eric A. Hernandez is a former Assistant U.S. Attorney for the Southern District of Florida and former law clerk to Florida Supreme Court Chief Justice Charles T. Wells. He has more than 25 years of trial experience and is bilingual in English and Spanish. He serves families throughout Coral Springs, Parkland, Coconut Creek, Margate, Tamarac, Pompano Beach, and all of Broward County.

Contact HLM Injury Lawyers — Free Consultation

If you have lost a loved one due to someone else’s negligence, call HLM Injury Lawyers at (305) 842-2100 for a free, confidential consultation. There is no fee unless we recover for you.

HLM Injury Lawyers 3301 N. University Dr., Suite 100 Coral Springs, FL 33065 (305) 842-2100