Making A Claim Under The Florida Wrongful Death Act

Your Remedy For A Loved One's Death Caused By The Actions Of Another

When the death of a loved one is the result of another's negligence or criminal action, a mechanism has been put in place by the legislature to allow a claim against the at-fault party, the Wrongful Death Act.

The Florida Wrongful Death Act is codified under § 768.16-768.26. These statutes outline the procedure for a claim based on an individual’s death due to the tortious acts of another. The Florida legislature created the Wrongful Death Act to shift losses “from the survivors of the decedent to the wrongdoer”.

A survivor is the decedent’s spouse, children, and parents. Blood relatives and adoptive siblings are also survivors if they are wholly or partially dependent on the decedent for support or services. A child born out of wedlock is a survivor of the deceased mother but will not be considered a survivor of a deceased, unwed father unless he previously recognized responsibility for the child’s support. Minor children under the Wrongful Death Act are those under the age of 25 at the time of the decedent’s death.

Support under these statutes are contributions in kind (things of value other than currency), monetary support, and services. Services are tasks, usually of a household nature, that were regularly performed by the decedent, that must now be performed by another whom the survivor must pay. For example, the husband performed yard maintenance for the household, after his death the surviving wife must pay a landscaping service to perform these tasks. The money she expends on this service would be compensable in a wrongful death action.

Survivors can also claim loss of “net accumulations”. These are the expected accumulation of wealth, such as salary and pension benefits, that the decedent would have earned over the course of their lifetime.

Non-economic damages can also be recovered. These are damages outside of financial support and services. When the claim is based on the death of an adult, a surviving spouse, as well as surviving minor children, can recover loss of companionship, protection, and mental pain/suffering calculated from the date of decedent’s death. If there is no surviving spouse, then recovery for these damages goes to any surviving child, regardless of age. Finally, if there are no surviving spouse or children, the parents of the deceased will be entitled to recovery. Recovery for pain and suffering arising from the death of a minor child are recoverable by the child’s surviving parents.

To calculate damages available to the survivors, the life expectancy of the deceased as well as that of the survivors will be taken into consideration. Life expectancy is determined by a series of elements and compiled into tables. The decedent's remaining life expectancy after their death will be used to calculate damages available to the survivors. The final calculation for recovery will then be contingent on the survivor's remaining life expectancy.

When an injured party is entitled to pursue a claim against a wrongdoer, but the injured party dies after the injurious act, the personal injury claim on behalf of the injured party is terminated. The personal representative of the decedent’s estate must then pursue a wrongful death action on behalf of the injured party’s estate/survivors.

Other aspects of the Wrongful Death Act provide additional mechanisms of recovery by the decedent’s personal representative but are beyond the scope of this article.

While the Wrongful Death Act allows the survivors of the decedent to make a claim against the at-fault party, it is a complicated process and one that should not be undertaken by grief-stricken family members.