The Florida Wrongful Death Act in 2026: Who Can Sue, Recoverable Damages & the 2-Year Deadline

When a Florida resident is killed by another person's negligence — a fatal crash on I-95, a nursing-home fall, a defective product, a Miami-Dade construction accident, or medical malpractice at a South Florida hospital — the family's civil remedy is governed by a single, tightly-drawn statute: the **Florida Wrongful Death Act**, codified at **Fla. Stat. §§ 768.16–768.26**. The Act is unusual. It creates a *single* cause of action brought only by the decedent's personal representative, lists exactly who counts as a 'survivor,' fixes what each survivor and the estate can recover, and cuts off the entire claim if suit is not filed within **two years** under Fla. Stat. § 95.11(4)(e) as amended by HB 837 (2023). This 2026 guide, written by a Miami wrongful death attorney, walks through how the Act actually works. Every case is different; nothing here is legal advice or a promise of any outcome.

Quick Answer for Florida Families

• The Florida Wrongful Death Act is at **Fla. Stat. §§ 768.16–768.26**.
• There is **one lawsuit**, brought only by the **personal representative of the estate** — never by individual family members on their own (§ 768.20).
• The action is for the benefit of the **estate** and the statutory **'survivors'** defined in § 768.18(1): the surviving **spouse, children, parents,** and any **blood relative or adoptive sibling** partly or wholly dependent on the decedent for support or services.
• The **statute of limitations is 2 years** from the date of death under **Fla. Stat. § 95.11(4)(e)**, as shortened by **HB 837 (2023)** for deaths accruing on or after **March 24, 2023**.
• Florida applies a **modified comparative negligence** rule under **§ 768.81(6)** — if the decedent is found **more than 50% at fault**, survivors recover **nothing**.
• Medical malpractice wrongful death claims have separate pre-suit and limitations rules under **Fla. Stat. §§ 766.106 and 95.11(4)(b)**.

What the Florida Wrongful Death Act Is (and Isn't)

The Wrongful Death Act was enacted in 1972 and replaced two older, awkward statutes (the Survival Act and the earlier wrongful-death statute). It is remedial legislation and, under § 768.17, is to be **liberally construed** so that 'the wrongdoer' — not the surviving family — 'bear[s] the losses' caused by the wrongful conduct. That instruction matters when courts interpret ambiguous survivor categories or damages provisions.

The Act creates a **single cause of action** that consolidates every eligible survivor's claim into one lawsuit filed by the personal representative. Individual family members cannot file their own wrongful death suits — a common misconception. If a probate estate has not been opened, the family's first step is often to open one in the county of the decedent's residence (Miami-Dade Circuit Court, Probate Division, for most Miami-area decedents) and have a personal representative appointed. Only then can suit be filed.

Who Qualifies as a 'Survivor' Under § 768.18(1)

The statute defines 'survivors' precisely. Only these people share in a Florida wrongful death recovery:

• **The surviving spouse** — legally married at the time of death.
• **Minor children** — under § 768.18(2), 'minor children' means children under 25, expanded from the previous 18 by 2023 legislation. All children under 25 recover for lost parental companionship, instruction, and guidance and for their own mental pain and suffering.
• **Adult children (25 or older)** — historically excluded from recovering non-economic damages in medical malpractice cases under a controversial provision of § 768.21(8), which was **struck down in 2025 by the Florida Legislature's HB 6017**. Adult children in medical malpractice wrongful death cases can now recover non-economic damages just as in any other wrongful death matter.
• **Parents of a deceased minor child** — recover for mental pain and suffering from the date of injury.
• **Parents of a deceased adult child** — may recover mental pain and suffering when there is no surviving spouse or children, and now (following HB 6017) in medical malpractice cases as well.
• **Any blood relative or adoptive sibling** who was partly or wholly dependent on the decedent for support or services.

Domestic partners not legally married, stepchildren not legally adopted, and long-term unmarried partners are **not survivors** under the Act. This is one of the harshest features of Florida wrongful death law and one every family should understand at the outset.

What Damages Are Recoverable

Section 768.21 splits recoverable damages between the **individual survivors** and the **estate**.

Damages recoverable by each survivor (§ 768.21(1)–(4))

• **Lost support and services** from the date of injury to death and reasonably expected in the future, reduced to present value.
• **Loss of the decedent's companionship and protection** — recoverable by the surviving spouse.
• **Mental pain and suffering** of the surviving spouse from the date of injury.
• **Lost parental companionship, instruction, and guidance** and **mental pain and suffering** for all children under 25, and for adult children when there is no surviving spouse.
• **Mental pain and suffering** for parents of a deceased minor child, and for parents of a deceased adult child (subject to the surviving-spouse condition and the 2025 HB 6017 changes for med-mal claims).
• **Medical or funeral expenses** paid by a survivor personally (§ 768.21(5)).

Damages recoverable by the estate (§ 768.21(6))

• **Lost earnings** of the deceased from the date of injury to the date of death, less lost support of survivors already recovered.
• **Lost 'net accumulations'** — the projected savings the decedent would have accumulated over his or her remaining life had death not occurred. This is often the largest single component in the death of a high-earner.
• **Medical and funeral expenses** that were a charge against the decedent's estate or paid by or on behalf of the decedent, excluding amounts already recovered by a survivor.

Florida wrongful death cases do **not** allow a claim for the decedent's own pre-death pain and suffering. That claim is abated at death and rolled into the wrongful death action. This is why the survivor mental-anguish and net-accumulations elements do so much work.

The 2-Year Statute of Limitations (Post-HB 837)

Before **March 24, 2023**, Florida wrongful death actions had a **4-year** statute of limitations under the general negligence rule. **HB 837 (2023)** cut that in half. For deaths that accrued on or after March 24, 2023, **suit must be filed within 2 years** of the date of death under **Fla. Stat. § 95.11(4)(e)**. There are extremely narrow tolling exceptions (fraudulent concealment, intentional misrepresentation, delayed discovery in medical malpractice), but families should assume the clock runs from the date of death and file well inside it.

For **medical malpractice wrongful death** claims, the 2-year clock in **§ 95.11(4)(b)** runs from the date the incident giving rise to the action was discovered, or should have been discovered with due diligence, with an outer 4-year statute of repose (and a 7-year outer limit in cases of fraud or concealment). Pre-suit notice and a corroborating affidavit are required under **§§ 766.106 and 766.203** before filing.

For claims against **government defendants** — a Miami-Dade County vehicle, City of Miami equipment, a Florida state agency — **§ 768.28(6)** requires a **written pre-suit notice** to the agency and the Department of Financial Services **within 3 years** of the death, and no lawsuit may be filed until the agency has had **180 days** to investigate. Sovereign immunity under § 768.28(5) caps recovery at **$200,000 per person / $300,000 per incident** absent a legislative claims bill.

Modified Comparative Negligence Under HB 837

Under **Fla. Stat. § 768.81(6)** as amended by HB 837, Florida is a **modified comparative negligence (50% bar)** state. If a jury allocates **more than 50% of the fault** to the decedent — for example, a fatal single-vehicle crash where the decedent was intoxicated, or a workplace death where the decedent bypassed a safety guard — the survivors recover **zero**. At 50% or less, damages are reduced by the decedent's fault percentage. This is the single most consequential procedural change to Florida wrongful death law in two decades and it applies to virtually every category of case except pure medical malpractice, which continues to use pure comparative fault under § 768.81(6).

Common Miami Wrongful Death Scenarios

• **Fatal traffic crashes** on I-95, the Palmetto, the Dolphin Expressway, the Rickenbacker Causeway, US-1, and Biscayne Boulevard.
• **Motorcycle, bicycle, and pedestrian fatalities** — Miami-Dade consistently ranks among the deadliest counties in the U.S. for these road users.
• **Rideshare (Uber/Lyft) fatalities** — coverage under the driver's commercial rideshare policy under Fla. Stat. § 627.748 is often the primary source of recovery.
• **Boating and cruise-ship deaths** — often overlapping with federal maritime law, DOHSA (46 U.S.C. §§ 30301–30308), and cruise-line forum-selection clauses.
• **Nursing home neglect and elder deaths** — governed by Fla. Stat. Chapter 400 and the Florida Wrongful Death Act simultaneously.
• **Construction fatalities** — third-party negligence claims outside workers' compensation exclusivity.
• **Medical malpractice deaths** — subject to pre-suit notice under § 766.106.
• **Defective product deaths** — product liability under § 768.81 apportionment.
• **Negligent security fatalities** — shootings and assaults at hotels, bars, and apartment complexes where landowners failed to provide adequate security.

Insurance and Sources of Recovery

Florida does not require Bodily Injury liability insurance for private passenger vehicles under current law — meaning a stunning number of fatal crashes involve at-fault drivers with no BI coverage at all. In those cases, the family's own **Uninsured/Underinsured Motorist (UM/UIM)** coverage under **Fla. Stat. § 627.727** is often the only meaningful source of recovery for pain-and-suffering damages. Stacked UM under § 627.727(9) can multiply available limits. For deaths on the job, workers' compensation death benefits under **Fla. Stat. § 440.16** run in parallel with any third-party wrongful death claim, and the comp carrier has a statutory lien.

Evidence That Decides Florida Wrongful Death Cases

• **Traffic and business surveillance video** — FDOT, MDX, and business DVR footage is typically overwritten in **7–30 days**. Preservation letters must go out immediately.
• **Event Data Recorder (EDR) downloads** from all involved vehicles — pre-impact speed, throttle, brake, delta-V.
• **FHP or MDPD Traffic Homicide Investigation reports** — far more detailed than a routine crash report.
• **Medical examiner records and autopsy report** — cause and manner of death, toxicology.
• **Employment and tax records** — foundational for lost support, lost earnings, and net-accumulation testimony from a forensic economist.
• **Family history, photos, and video** — foundational for mental-pain-and-suffering damages.
• **Expert reports** — accident reconstruction, forensic economics, life-care planning, medical causation.

What the Personal Representative Actually Does

The personal representative (PR) is appointed by the probate court and is the only person with legal standing to prosecute the wrongful death action. The PR gathers evidence, retains counsel, files suit, negotiates settlement, allocates recovery among survivors and the estate under § 768.21, and (for any settlement involving a minor survivor's share) obtains court approval. The allocation matters because different portions of the recovery are taxed differently and affect creditor and lien exposure differently. Poor allocation decisions at settlement can cost survivors substantial money — this is one of the reasons wrongful death cases are almost never resolved without experienced counsel.

Frequently Asked Questions

Who can file a wrongful death lawsuit in Florida?

Only the **personal representative** of the decedent's estate can file a wrongful death action in Florida. The PR sues on behalf of the estate and every statutory 'survivor' defined in **Fla. Stat. § 768.18(1)** — spouse, children under 25, parents in some circumstances, and blood relatives or adoptive siblings partly or wholly dependent on the decedent.

What is the statute of limitations for wrongful death in Florida?

**Two years** from the date of death under **Fla. Stat. § 95.11(4)(e)** for deaths occurring on or after **March 24, 2023**, as shortened by **HB 837 (2023)**. Medical malpractice wrongful death has its own 2-year discovery rule with a 4-year outer statute of repose under § 95.11(4)(b). Claims against government defendants require a 3-year pre-suit notice under § 768.28(6).

What damages can survivors recover under the Florida Wrongful Death Act?

Under **Fla. Stat. § 768.21**, survivors may recover lost support and services, loss of companionship and protection (spouse), mental pain and suffering (spouse, children under 25, and parents in some circumstances), and lost parental companionship, instruction, and guidance (children). The estate may recover lost earnings, lost net accumulations, and medical and funeral expenses paid by or on behalf of the decedent.

Can adult children recover in a Florida wrongful death case?

Yes. Children under 25 are considered 'minor children' under **§ 768.18(2)** and recover in every wrongful death case. Adult children 25 or older may recover mental pain and suffering when there is no surviving spouse, and — following **HB 6017 (2025)** — may now recover non-economic damages in medical malpractice wrongful death cases, which was previously prohibited under an older version of § 768.21(8).

What if the person who died was partly at fault?

Under **Fla. Stat. § 768.81(6)** as amended by **HB 837 (2023)**, if the decedent is found **more than 50% at fault**, the survivors recover **nothing**. At 50% or less, recovery is reduced by the decedent's percentage of fault. Medical malpractice cases continue to apply pure comparative fault.

How long do Florida wrongful death cases take?

Uncontested cases with clear liability and adequate insurance can resolve in 6–18 months. Contested cases involving disputed liability, multiple defendants, medical malpractice pre-suit procedures, or high-limits UM disputes routinely take 2–4 years. Cases in litigation against government defendants under § 768.28 are typically longer because of the 180-day pre-suit investigation and sovereign immunity caps.

Are wrongful death settlements taxable in Florida?

Compensatory damages for physical injury or physical sickness — including wrongful death compensatory recoveries — are generally excluded from gross income under **26 U.S.C. § 104(a)(2)**. Punitive damages and pre-judgment interest are generally taxable. Allocation among survivors and the estate matters for tax purposes. This is not tax advice — consult a CPA about your specific circumstances.

Key Takeaways for Florida Families in 2026

• The Florida Wrongful Death Act (§§ 768.16–768.26) creates **one** cause of action, brought only by the personal representative.
• 'Survivors' are narrowly defined in **§ 768.18(1)** — unmarried partners and non-adopted stepchildren are not included.
• **HB 837 cut the statute of limitations to 2 years** for deaths on or after March 24, 2023 under § 95.11(4)(e).
• **HB 6017 (2025)** restored adult children's and parents' right to non-economic damages in medical malpractice wrongful death cases.
• **50% modified comparative negligence** under § 768.81(6) bars recovery when the decedent is more than 50% at fault.
• Government-defendant cases require pre-suit notice and are capped by sovereign immunity under § 768.28.
• **UM/UIM coverage** is frequently the largest single source of recovery in fatal traffic cases because Florida does not require BI coverage.
• Never give a recorded statement to any adjuster before consulting a Florida wrongful death attorney.

If your family has lost a loved one because of another person's or company's negligence in Miami, Coral Gables, or anywhere in South Florida, **The Farber Law Firm** offers free, confidential consultations. We have represented Florida families in serious-injury and wrongful death matters since 1995 and handle these cases statewide.

This article is for general informational purposes only and does not constitute legal advice. Wrongful death cases depend on the specific facts, applicable Florida law, and the terms of any applicable insurance policies. Statutes and case law cited are current as of publication in July 2026 and are subject to change. Consult a licensed Florida attorney about your specific situation.