Who Can File a Wrongful Death Claim in Florida?

Legally Reviewed by Ian Thomas on August 3, 2026

In Florida, only one person may formally file a wrongful death lawsuit: the personal representative of the deceased person’s estate. Florida Statutes name this individual as the party of record for the case, even though the compensation ultimately recovered is meant to benefit the deceased’s surviving spouse, children, parents, and other qualifying family members. Understanding the difference between who files the claim and who is eligible to recover damages is often the most confusing part of a wrongful death case, and getting it wrong can slow down a family’s ability to recover the compensation they may be owed.

At McPherson & Thomas, P.A., we work with Florida families through every stage of a wrongful death claim, from identifying the correct personal representative to pursuing compensation on behalf of every eligible beneficiary. Our team has spent years helping surviving family members in the Tampa Bay area understand their rights under Florida law during one of the most difficult periods of their lives.

Who Is the Personal Representative in a Florida Wrongful Death Case?

Florida law names a single point of contact for every wrongful death lawsuit: the personal representative of the deceased person’s estate. Under Florida Statutes section 768.20, the personal representative is the only party authorized to bring the wrongful death action, and the representative recovers compensation for the benefit of the decedent’s survivors and estate rather than for personal gain.

Most personal representatives are named directly in the deceased person’s will. When a loved one passes away without a will, known as dying intestate, Florida Statutes section 733.301 sets out an order of preference for who the probate court may appoint, generally the surviving spouse, a person selected by a majority in interest of the heirs, or the heir nearest in degree of relationship to the deceased. If the family cannot agree, the court has discretion to appoint someone it considers qualified to serve.

Being named personal representative does not mean that person is the only one who benefits from the case. The representative acts on behalf of every eligible survivor, which is why identifying the right person early, and pairing that person with an attorney, can make a meaningful difference in how smoothly a claim moves forward.

It is also worth noting that the personal representative appointed for probate purposes, such as settling debts and distributing property, is often the same person who serves as personal representative for the wrongful death claim, though this is not always required. Confirming this role early, ideally with guidance from an attorney familiar with both probate and wrongful death law, helps prevent delays that can otherwise slow down a family’s case.

What Qualifies as a Wrongful Death Claim in Florida?

Florida law defines a wrongful death broadly. Under Florida Statutes section 768.19, a claim exists whenever a person’s death is caused by the wrongful act, negligence, default, or breach of contract of another party, and the deceased would have been entitled to bring a personal injury claim had they survived the underlying incident.

In practice, this covers a wide range of situations. Fatal car, motorcycle, and pedestrian crashes are among the most common triggers for a Florida wrongful death claim, but the same legal framework applies to fatalities caused by medical malpractice, defective products, unsafe property conditions, and workplace incidents. What matters legally is not the type of accident, but whether another party’s carelessness or misconduct caused the death.

Because the underlying cause of death shapes which evidence matters and which insurance policies or defendants may be involved, an early legal review of the circumstances surrounding a loved one’s passing is often the first step toward determining whether a wrongful death claim is available.

A wrongful death claim is a civil case, and it is entirely separate from any criminal charges that might arise from the same incident. A criminal prosecution, if one occurs, is brought by the state and focused on punishing the at-fault party, while a wrongful death lawsuit is brought by the personal representative on behalf of the family and is focused on compensating survivors for their losses.

Because the two proceedings serve different purposes and use different standards of proof, a wrongful death claim can generally move forward regardless of whether criminal charges are filed, dropped, or result in an acquittal. Families sometimes assume that a wrongful death claim is only available if the at-fault party is criminally charged or convicted, but that is not accurate under Florida law.

This distinction matters because families are often left waiting on a criminal case to resolve before considering their own legal options. In most situations, a wrongful death claim can proceed on its own timeline, which is one reason it is worth speaking with an attorney early rather than waiting for a criminal case, if one exists, to conclude.

Who Can Recover Damages as a Beneficiary in a Wrongful Death Case?

Filing the lawsuit and receiving compensation are two different roles under Florida law. While the personal representative brings the case, Florida Statutes section 768.21 identifies which surviving family members, known as beneficiaries, are entitled to share in any compensation recovered. Eligibility generally follows this order:

• The surviving spouse, who may recover for lost support, lost companionship, and mental pain and suffering.
• Minor children, and all children if there is no surviving spouse, who may recover for lost parental guidance, instruction, and companionship.
• Parents of a deceased minor child, who may recover for their own mental pain and suffering.
• Adult children and parents of a deceased adult child, who may recover in more limited circumstances, generally when no surviving spouse or minor children exist.
• Other blood relatives or adoptive siblings who depended on the deceased for support or services.

Not every category applies to every case, and Florida law limits what adult children and parents of adult children may recover compared to a surviving spouse or minor children. Because these distinctions directly affect who is entitled to compensation and how much, reviewing a family’s specific relationships with an attorney early in the process helps avoid confusion about who has a legal interest in the claim.

What Compensation May Be Available in a Wrongful Death Claim?

Florida’s wrongful death statute allows beneficiaries and the decedent’s estate to pursue several categories of compensation, though not every beneficiary qualifies for every category. Commonly available damages include medical and funeral expenses connected to the death, lost wages and benefits the deceased would likely have provided, loss of companionship and protection, and mental pain and suffering experienced by qualifying survivors.

The estate itself may also pursue the deceased’s lost earnings between the date of injury and the date of death, along with prospective net accumulations the person might have added to the estate had they lived a normal life expectancy. In cases involving especially reckless or intentional conduct, Florida law may also allow punitive damages, though these are awarded only in limited circumstances and are never guaranteed.

Because the value of a wrongful death claim depends heavily on the deceased’s age, income, and family relationships, our detailed breakdown of wrongful death damages under Florida law walks through how each category is calculated in more depth.

How an Attorney Can Help Your Claim

Beyond identifying the correct personal representative, an attorney’s role in a wrongful death case covers the investigative and negotiation work that most grieving families are not equipped to take on alone. While your family focuses on grieving and healing, your attorney can work on the following.

Collecting and Assessing Evidence

As with any other personal injury claim, establishing that a wrongful death resulted directly from another party’s negligence requires collecting and assessing the available evidence, such as photographs, video footage, witness statements, medical records, and other documentation tied to the incident and the circumstances of the death.

Establishing Liability

Using the gathered evidence, an attorney can work to establish the four elements of negligence: duty of care, breach of that duty, causation between the breach and the death, and the resulting damages suffered by the survivors.

Negotiating for Fair Compensation

Insurance companies frequently offer an initial settlement that undervalues a family’s loss, particularly when the full scope of medical bills, lost income, and non-economic damages has not been fully documented. An attorney can help ensure that a settlement offer reflects the full extent of the family’s losses before it is accepted, and can pursue litigation if a fair resolution cannot be reached through negotiation alone.

Statute of Limitations for Filing a Wrongful Death Claim in Florida

Florida law places a strict time limit on wrongful death claims. Under Florida Statutes section 95.11(5)(e), a wrongful death lawsuit generally must be filed within two years of the date of death, not the date of the underlying accident or diagnosis. Missing this deadline typically means losing the right to recover compensation, regardless of how strong the underlying claim may have been.

Certain circumstances can affect how this deadline is calculated, particularly in cases involving delayed diagnoses, such as claims connected to delayed medical treatment after an accident. Because the exact filing deadline can shift depending on when the death occurred and the nature of the underlying claim, it is worth confirming the applicable deadline with an attorney as soon as possible after a loved one’s passing rather than assuming a set date applies.

The full text of Florida’s wrongful death damages statute, including the categories of beneficiaries and compensation described throughout this article, is published by the Florida Legislature’s Office of Statute Revision. Reviewing the statute directly can help families understand how the law defines their rights, though an attorney can help translate how these provisions apply to a specific case.

How Wrongful Death Compensation Is Distributed

Once a wrongful death claim resolves, whether through settlement or a court verdict, compensation is not divided evenly among every surviving family member. Instead, Florida law requires the proceeds to be distributed according to each beneficiary’s specific losses and their position in the statutory order of priority described above.

In most cases, the personal representative works with the court and the family’s attorney to allocate the settlement or verdict among the qualifying beneficiaries based on the losses each person is legally entitled to claim. A surviving spouse and minor children, for example, may be entitled to a larger share than a more distant dependent relative, since their statutory damages categories are broader.

When a minor child is entitled to a share of the settlement, Florida courts often require additional oversight, such as court approval of the settlement terms or the appointment of someone to manage the minor’s portion until they reach adulthood. This extra layer of review is designed to protect a child’s financial interests, and it can add time to how quickly funds become available.

Because disputes can arise when multiple family members believe they are entitled to a larger share, having legal guidance throughout the distribution process can help families understand how compensation is allocated under Florida law. Our overview of Florida’s wrongful death claims process covers this distribution process in more detail.

What to Do After a Loved One’s Death Caused by Negligence

The period immediately following a loved one’s unexpected death is overwhelming, but a few early steps can help protect a family’s ability to pursue a wrongful death claim later. Obtaining an official death certificate, preserving any physical evidence connected to the incident, and requesting relevant medical or accident records as soon as possible can prevent important documentation from becoming difficult to obtain later.

It is also worth avoiding early conversations with insurance adjusters before speaking with an attorney. Insurance companies often reach out quickly after a fatal accident, and statements made during those early conversations, even innocent ones, can later be used to dispute liability or minimize compensation.

Keeping the immediate family informed and aligned on next steps can also help prevent disputes later about who should serve as personal representative or how the case should proceed. Even when emotions are high, clear communication between family members in the early days after a loss can make the legal process considerably smoother.

Finally, identifying who is likely to serve as personal representative, whether through an existing will or the statutory order described earlier, allows a family to begin the legal process without unnecessary delay. An attorney can often help coordinate this step directly with the probate court while the family focuses on more immediate concerns.

How McPherson & Thomas, P.A. Can Help Your Family

McPherson & Thomas, P.A. has represented Florida families in personal injury and wrongful death matters for more than 25 years. We approach every wrongful death claim with the same combination of legal knowledge and personal attention, whether that means identifying the right personal representative, gathering the evidence needed to establish liability, or pursuing fair compensation on behalf of every eligible beneficiary. Our attorneys also regularly guide families through the probate process alongside the wrongful death claim itself, since the two often move forward together.

No two wrongful death cases look exactly alike, and the deadlines and eligibility rules described throughout this article can be difficult to apply to a specific family’s situation without legal guidance. If you have lost a loved one due to another party’s negligence and are unsure who can file a claim or what compensation your family may be entitled to pursue, we invite you to discuss your situation with our team through our contact form.

Frequently Asked Questions About Wrongful Death Claims in Florida