Understanding How Florida Handles Claims After a Loved One Dies
Key Takeaways: Florida generally does not allow families to pursue a survival action and a wrongful death claim as two separate cases when the same injury caused the death. Under Fla. Stat. § 768.20, the decedent’s personal injury claim abates at death and is replaced by a single wrongful death action brought by the personal representative. Damages are divided by statutory survivor category, spouses, children, parents, and the estate each recover different items. Estate awards may be exposed to probate creditor claims while survivor damages generally are not. Florida allows two years from the date of death to file, with limited exceptions.
When a family loses someone because of another person’s carelessness, one of the first questions is what kind of claim can be filed. In many states, families pursue two separate cases: a survival action and a wrongful death claim. Florida works differently. Under Fla. Stat. § 768.20, when a personal injury to the decedent results in death, no action for the personal injury survives, and any such action pending at the time of death abates.
If you are trying to make sense of this after a devastating loss, you do not have to figure it out alone. Furmanski Law Group offers free consultations, and attorney Daniel Furmanski handles these matters personally. Call 305-900-6657 or reach out to our team to talk through your family’s situation.
Why Florida Merged Two Historically Separate Claims
Florida’s approach traces back to a deliberate legislative decision to combine two distinct legal theories into one. The Florida Supreme Court has described how the Wrongful Death Act "effectuated a complex merger of two previously existing causes of action: a statutory wrongful death action focused on compensating survivors, and a survival action focused on compensating the decedent." That merger, discussed in coverage of the surviving spouse standard in wrongful death cases, is the structural root of many questions families ask.
The modern framework dates to 1972. Fla. Stat. § 768.19 carries the history note "s. 1, ch. 72-35," marking the year Florida enacted its current Wrongful Death Act.
What the Florida 46.021 Survival Action Actually Covers
Florida Statute § 46.021 is a general survival provision stating that no cause of action dies with the person. Families researching the Florida 46.021 survival action often expect it to preserve the injury claim of a person who later died from that injury. Under § 768.20, that is generally not the case when the injury caused the death.
A Florida 46.021 survival action can still matter in cases involving claims unrelated to the fatal injury. For example, a property damage claim, an injury from a separate incident, or a claim by someone who died from an unrelated cause while a personal injury suit was pending may survive under general survival principles.
The Practical Effect on Families
In practice, this means a Florida family pursues one consolidated action rather than two parallel lawsuits. Fla. Stat. § 768.20 requires that the action be brought by the decedent’s personal representative, who may recover for the benefit of both the survivors and the estate. Individual family members typically cannot file their own separate suits.
💡 Pro Tip: Opening a probate estate and having a personal representative appointed is often a necessary early step, because without that appointment there may be no one with standing to file the claim.
The Threshold Test Under the Florida Wrongful Death Act
Before damages ever enter the conversation, the claim must clear a liability threshold. Under Florida’s wrongful death liability statute, liability may arise "When the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person." The statute also requires that "the event would have entitled the person injured to maintain an action and recover damages if death had not ensued."
That condition matters more than it first appears. If the decedent’s own claim would have failed due to a valid release, applicable immunity, or workers’ compensation exclusive remedy bar, the wrongful death action may face the same obstacle. Proving duty, breach, causation, and damages remains the core of the case. Florida’s comparative fault statute may reduce or bar recovery where the decedent is found more than 50 percent at fault.
The statute’s reach is broader than many people realize. Fla. Stat. § 768.19 expressly covers deaths occurring on navigable waters and may apply even when the death was caused under circumstances constituting a felony. Boating fatalities and deaths involving criminal conduct may still support a civil claim, though the civil case generally proceeds separately from any criminal prosecution.
How Wrongful Death Damages in Florida Are Divided
Florida allocates recovery by statutory survivor category rather than pooling everything into the estate. Fla. Stat. § 768.21 assigns different damages to different people depending on their relationship to the decedent, and § 768.18 defines who qualifies as a "survivor."
| Claimant | Representative Damages | Authority |
|---|---|---|
| Each survivor | Lost support and services from date of injury to death, plus future loss reduced to present value | § 768.21(1) |
| Surviving spouse | Loss of companionship and protection; mental pain and suffering from date of injury | § 768.21(2) |
| Children | Lost parental companionship, instruction, guidance; mental pain and suffering (minors, or all children if no surviving spouse) | § 768.21(3) |
| Parents | Mental pain and suffering for a deceased minor child; for an adult child only if there are no other survivors | § 768.21(4) |
| Estate | Lost earnings from injury to death less lost support of survivors (excluding contributions in kind), with interest; medical and funeral expenses charged to the estate | § 768.21(6)(a)-(b) |
The estate’s category is the closest Florida comes to traditional survival claim damages. Under § 768.21(6)(a), the personal representative may recover the decedent’s lost earnings from the date of injury to death, less lost support of survivors (excluding contributions in kind), with interest. Medical and funeral expenses charged to the estate are separately recoverable under Fla. Stat. § 768.21(6)(b). Lost prospective net accumulations are recoverable by the estate if the decedent’s survivors include a surviving spouse or lineal descendants, or if the decedent is not a minor child, there are no lost support and services recoverable under subsection (1), and there is a surviving parent.
Adult Children and Other Structural Limits
Florida’s statute contains carve-outs that can bar recovery entirely for certain family members. An adult child generally may not recover mental pain and suffering under § 768.21(3) when there is a surviving spouse. Separately, § 768.21(8) bars non-economic damages for adult children, and for parents of adult children, in claims arising from medical negligence.
The statute defines eligibility by relationship and survivor status rather than by closeness. An attorney can review who may qualify under the current statutory text and whether any exception may apply to your circumstances.
Estate Versus Survivors: Why the Distinction Has Real Consequences
Money paid to the estate and money paid to survivors may be treated very differently. Under Fla. Stat. § 768.21(7), awards to the estate may be subject to the claims of creditors who complied with probate law. Damages paid directly to individual survivors generally are not exposed the same way.
Defenses are also handled survivor by survivor. Section 768.20 provides that a defense that would bar or reduce a survivor’s recovery if she or he were the plaintiff may be asserted against that survivor, but shall not affect the recovery of any other survivor. Comparative fault attributed to one family member generally does not eliminate another family member’s claim, though fault attributed to the decedent may reduce the recovery as a whole.
Key differences families should keep in mind:
- The personal representative brings the single action, not each survivor individually
- Estate recovery may be exposed to valid probate creditor claims; survivor recovery generally is not
- Individualized defenses apply only to the affected survivor
- Non-economic damages depend on statutory survivor status, not emotional closeness
Deadlines and Early Steps That Often Matter Most
Florida generally applies a two-year limitations period for wrongful death actions, running from the date of death. Limited exceptions exist, including tolling for fraudulent concealment and different accrual rules in medical malpractice cases. Claims involving government entities carry additional requirements under § 768.28, including written pre-suit notice and sovereign immunity damage caps.
Evidence preservation is the other early priority. Vehicle data, surveillance footage, and maintenance records can disappear within weeks. If the death arose from a crash, the same practical steps that apply after a car accident generally apply here, including preserving photographs, witness contact information, and any official reports.
💡 Pro Tip: Ask that the vehicle or equipment involved not be repaired, sold, or scrapped until your attorney has arranged an inspection.
Frequently Asked Questions
1. Can my family file both a survival action and a wrongful death claim in Florida?
Generally no, when the same injury caused the death. Section 768.20 provides that the personal injury action does not survive and abates. A consolidated claim may still include estate-focused damages under § 768.21(6)(a).
2. Who is allowed to file the lawsuit?
The decedent’s personal representative files on behalf of both the survivors and the estate. Individual survivors participate through that single action rather than filing separately.
3. Does it matter whether the estate or the survivors receive the damages?
Yes. Estate awards may be subject to qualifying probate creditor claims under § 768.21(7), while survivor damages generally are not.
4. What if the at-fault person is also facing criminal charges?
A civil claim may still proceed. Section 768.19 expressly contemplates deaths caused under circumstances constituting a felony, and the civil case is separate from any criminal prosecution.
5. How long do we have to act?
Florida generally allows two years from the date of death for wrongful death actions, subject to narrowly construed exceptions and different requirements for claims against government entities. Families should speak with an attorney promptly.
Moving Forward With Clarity After a Loss
Florida’s framework can be confusing because it departs from what families read elsewhere. The survival action versus wrongful death Florida comparison generally collapses into one consolidated claim brought by the personal representative, with damages divided between statutory survivors and the estate. Identifying every eligible survivor and documenting both economic and non-economic losses are among the steps that can shape a case.
If your family is weighing your options, a conversation with a Miami wrongful death lawyer can bring order to a difficult moment. Daniel Furmanski brings substantial personal injury experience, including prior agency-side work, and stays personally involved in every case at Furmanski Law Group. Call us today for a free consultation at 305-900-6657, or learn more about the firm at furmanskilawgroup.com. Se habla español.
Disclaimer: This content is for informational purposes only and is not legal advice. Every case is unique, and results may vary. Consult an attorney about your specific circumstances.