A wrongful death claim exists when someone dies as a result of the negligence of another party. Fatal injuries occur frequently in car crashes, motorcycle and truck accidents, medical negligence, and product liability claims. These cases differ from other injury cases because they are governed by the Florida wrongful death statute. The wrongful death statute specifically provides who is entitled to receive compensation, as well as the types of damages which may be recovered.

There are several distinguishing factors about death claims. First, in Florida, there is a much shorter time within which a death claim must be filed, generally within two years of the date of death. Normal injury claims in Florida, other than medical negligence, must be brought within a period of four years. The period of time within which a claim must be brought is referred to as the statute of limitations.

Second, death claims are pursued by a personal representative appointed by the court on behalf of all beneficiaries of the decedent's estate. There may be several people with the right to pursue claims when someone dies, such as: both parents of a surviving minor child, even though they are divorced; children of a deceased parent; or a parent and one or more children of the decedent. A petition must be filed in the Probate Court on behalf of the decedent's estate for the appointment of the personal representative, generally the surviving spouse, adult child, a parent or other relative. Once appointed, the personal representative of the estate is given authority to retain a lawyer on behalf of the estate and to pursue all claims for compensation on behalf of all beneficiaries.

Additionally, Florida's medical malpractice statute has modified the right of recovery under the wrongful death statute. For instance, adult children, who would be entitled to recovery under the wrongful death statute for the death of a parent who was not survived by a spouse, are excluded from recovery when death occurs as a result of medical negligence. These statutes must be carefully examined to determine who may be entitled to recover damages.

Sometimes the injury lawyer retained on behalf of the personal representative may also represent the estate in the probate proceedings. More commonly, the injury lawyer will associate a probate and estates lawyer to handle the probate proceedings. It is beyond the scope of this article to outline in any detail the potential beneficiaries of a wrongful death claim and the damages they may be entitled to receive. When these tragedies occur, consultation with an experienced personal injury lawyer should be pursued at the earliest opportunity.


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Attorney James W. Dodson is a Clearwater, Florida personal injury trial lawyer with over 20 years experience representing clients in all types of injury claims including vehicle accidents, fall cases and wrongful death. He is the author of three books offered FREE to consumers as a guide to dealing with accidents and insurance. Visit his website at JWDodsonLaw.com for FREE copies of these books, other articles, videos, news and commentary.