Florida Wrongful Death Lawyer

In Florida the family does not file the lawsuit. The personal representative of the estate does — and until the probate court issues Letters of Administration, there is no one with legal authority to sue. That is the step most families are never told about, and it is where a two-year deadline quietly runs out.

Jose M. Lorenzo, Jr. handles the probate side of Florida wrongful death claims statewide, in English and Spanish — opening the estate, getting the personal representative appointed, and protecting the recovery once it arrives. Free consultation. Frequently as co-counsel with the trial firm handling liability.

Talk to a lawyer about opening the estate. (305) 224-6811 — free consultation, English or Spanish.

Who can file a wrongful death lawsuit in Florida?

Only the personal representative of the decedent’s estate. Not the spouse, not the children, not the parents — no matter how directly the loss falls on them.

§768.20 is explicit: the action is brought by “the decedent’s personal representative, who shall recover for the benefit of the decedent’s survivors and estate all damages.”

One person files the wrongful death claim. Everyone else recovers through that filing. This is why a probate estate has to be opened before the civil case can begin, and it applies whether or not the decedent left a will, and whether or not there is anything else in the estate to administer.

If no one has yet been appointed, that is the first task — see how to become personal representative in Florida.

Is a personal representative the same as an executor?

Yes — Florida just uses a different word. Other states say “executor” for someone named in a will and “administrator” where there is no will. Florida calls both a personal representative, and that is the term the statutes, the court file and the Letters of Administration will use. If you are searching for a Florida wrongful death executor, this is the role you mean.

Who are the survivors in a Florida wrongful death case?

“Survivors” is a defined term, and the definition is narrower than most families expect. Under §768.18(1) it means:

the decedent’s spouse, children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters.

Three consequences people do not anticipate:

• A sibling is not automatically a survivor. A brother or sister recovers only on proof of actual dependency. Same for any other blood relative.
• Stepchildren are not survivors unless legally adopted.
• “Minor children” means children under 25. §768.18(2) defines the term as “children under 25 years of age, notwithstanding the age of majority.” A 22-year-old is a minor child for this statute. A 26-year-old is not. That single line decides which damages are available and, in medical negligence cases, whether there is a claim at all.

Being a wrongful death survivor is also not the same as being an heir. Someone can inherit under the will and recover nothing here; someone can recover here and inherit nothing. The two lists are built from different statutes and they routinely do not match.

What kinds of death qualify for a wrongful death claim in Florida?

Any death caused by a “wrongful act, negligence, default, or breach of contract or warranty” — §768.19. The test is whether the person could have sued had they lived. In practice the cases fall into a short list:

How the death happened	Who is usually liable	What complicates it
Fatal car, truck and motorcycle crashes	The at-fault driver; a trucking company under respondeat superior; sometimes a vehicle or parts manufacturer	Policy limits, UM/UIM coverage, and the comparative fault fight below
Nursing home neglect and abuse	The facility, its management company, sometimes individual staff	An arbitration agreement signed at admission
Medical negligence — surgical error, misdiagnosis, medication error, maternal and birth-related death	Physician, hospital, practice group	Chapter 766 presuit investigation, and the §768.21(8) bar
Workplace and industrial accidents	A third party — a contractor, equipment maker or property owner	Workers’ compensation immunity usually bars a claim against the employer itself
Premises liability and drownings	Property owner, occupier, pool or apartment operator	Notice of the dangerous condition; §768.0755 for transitory substances
Defective products	Manufacturer, distributor, retailer	Identifying the chain of distribution before the two years run
Deaths involving alcohol service	Under Florida’s dram shop statute, §768.125, a vendor is liable only for serving someone underage or a person known to be habitually addicted	Florida’s statute is narrow — ordinary over-service is not enough
Accidental death caused by a public entity	City, county, school district, public hospital	Sovereign immunity caps and a shorter notice deadline

Where the conduct was especially egregious — drunk driving, gross negligence, intentional misconduct — §768.72 permits a claim for punitive damages, but only on a proffer of evidence and by court order; punitive damages cannot simply be pleaded at the outset.

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

Two years from the date of death — §95.11(5)(e). The clock runs from the death, not from the appointment of a personal representative, and it does not pause while probate is pending.

That is the headline. Several other clocks can cut it shorter or push it out:

Clock	Period	Authority
Wrongful death action	2 years from death	§95.11(5)(e)
Medical negligence — limitations	2 years from the incident or from discovery	§95.11(5)(c)
Medical negligence — absolute repose	4 years from the incident (7 on fraud or concealment)	§95.11(5)(c)
Notice of claim against a government entity	2 years for wrongful death (3 for other claims)	§768.28(6)(a)
Government agency’s non-response becomes a denial	90 days in wrongful death and medical malpractice	§768.28(6)(d)
Chapter 766 presuit investigation, medical cases	Adds a presuit notice period before suit may be filed	Ch. 766

The practical problem is that appointment takes time and the clock does not care. An uncontested appointment can be done in two to four weeks. A contested one takes months. If the family is eighteen months out and still arguing about who should serve, the deadline is the emergency — not the argument.

What happens if the injured person dies while their lawsuit is pending?

This is the question with the least intuitive answer on the page, and it catches families and lawyers alike.

If the person was already suing over the injury and then died of that injury, the injury case does not continue. §768.20:

When a personal injury to the decedent results in death, no action for the personal injury shall survive, and any such action pending at the time of death shall abate.

The pending case abates. It is replaced by a wrongful death action brought by the personal representative — a different claim, with different plaintiffs, different damages and its own two-year clock.

But “abate” does not mean the file is thrown out. The Florida Supreme Court held in Capone v. Philip Morris USA, Inc., 116 So. 3d 363 (Fla. 2013), that abatement under §768.20 suspends the case rather than voiding it: the personal representative must be added as a party and given a reasonable opportunity to amend the complaint to plead wrongful death — or, where the parties dispute whether the injury actually caused the death, to plead survival damages and wrongful death in the alternative.

That is why substitution under Fla. R. Civ. P. 1.260 is necessary but not sufficient. Rule 1.260(a)(1) permits substitution where the claim “is not thereby extinguished” — and §768.20 extinguishes this one. Substitution puts the right plaintiff in the case; only amendment produces a claim that can be tried. The rule carries its own deadline: unless the motion for substitution is made within 90 days after a statement noting the death is filed and served, the action is dismissed as to the deceased party.

Rule 1.260 still matters where the death was unrelated to the lawsuit — the plaintiff in a contract case dies of something else, and the estate substitutes in and carries on.

Does Florida have a survival action?

Not for the injury that caused the death. Florida folds what other states call a survival claim into the Wrongful Death Act itself: the decedent’s own losses — lost earnings from injury to death, medical and funeral expenses charged to the estate — are recovered by the personal representative for the estate under §768.21(6), inside the same action.

Florida’s general survival statute, §46.021, says no cause of action dies with the person. §768.20 is the specific exception that controls where the injury caused the death: Florida substitutes a statutory wrongful death action for the personal injury action that would otherwise have survived. Niemi v. Brown & Williamson Tobacco Corp., 862 So. 2d 31 (Fla. 2d DCA 2003), quoted in Salfi v. Columbia/JFK Medical Center Ltd. Partnership, 942 So. 2d 417 (Fla. 4th DCA 2006). The 1972 Act merged the two into a single lawsuit, and the Florida Supreme Court upheld that consolidation against constitutional challenge in Martin v. United Security Services, Inc., 314 So. 2d 765 (Fla. 1975).

The distinction is not academic. It determines which damages sit in the survivors’ column and which sit in the estate’s column — and, as the next section explains, only one of those columns is exposed to creditors.

What damages can you recover in a Florida wrongful death case?

§768.21 assigns each category of damages to a specific claimant. Nothing is recoverable at large.

Who recovers	What	Subsection
Each survivor	Lost support and services, from the date of injury to death with interest, and future loss reduced to present value	(1)
Surviving spouse	Loss of companionship and protection, and mental pain and suffering from the date of injury	(2)
Children under 25 — and all children if there is no surviving spouse	Lost parental companionship, instruction and guidance, and mental pain and suffering	(3)
Each parent of a child under 25	Mental pain and suffering from the date of injury	(4)
Each parent of an adult child	Mental pain and suffering — only if there are no other survivors	(4)
Whichever survivor paid them	Medical and funeral expenses	(5)
The estate	Lost earnings from injury to death; lost prospective net accumulations; medical and funeral expenses charged to the estate	(6)

Four details that change cases:

• The complaint must name everyone. §768.21 opens by requiring that all potential beneficiaries, including the estate, be identified in the complaint and their relationships alleged. Missing a survivor is a pleading defect, not a detail to sort out later.
• Lost net accumulations are conditional. They are recoverable only where there is a surviving spouse or lineal descendants, or — where the decedent was 25 or over and no one has a lost-support claim — where a parent survives. §768.21(6)(a).
• Evidence of a surviving spouse’s remarriage is admissible. The statute says so in terms.
• Simultaneous deaths. If both spouses die within 30 days of one another from the same incident, each is treated as having been predeceased by the other — which converts the children’s claim into the “no surviving spouse” category. §768.21(3).

Can creditors take a Florida wrongful death settlement?

Some of it, yes — and the line is drawn precisely. This is the most misunderstood rule in Florida wrongful death practice, and it is the reason the probate side is worth doing carefully.

Damages awarded to survivors under §768.21(1)–(5) are not estate assets. They pass to the individuals named in the statute and the decedent’s creditors do not reach them.

Damages awarded to the estate under §768.21(6) are a different matter. §768.21(7):

All awards for the decedent’s estate are subject to the claims of creditors who have complied with the requirements of probate law concerning claims.

So the answer is not “wrongful death proceeds are protected.” It is: the survivors’ share is protected; the estate’s share is exposed, but only to creditors who filed properly and on time.

Two practical consequences follow, and both are reasons the allocation between the columns is worth arguing over rather than accepting:

• How a settlement is apportioned between survivor damages and estate damages directly determines how much a creditor can reach.
• Creditor claims are defeated by the probate claims process far more often than by argument. A claim filed outside the statutory window is barred, whatever its merits — see Florida probate creditors.

Will Medicare, Medicaid or a hospital lien take part of the settlement?

Frequently, yes — and a lien is not a creditor claim. An estate creditor must file in the probate proceeding and is barred if it files late. A lien or subrogation right attaches to the recovery itself, arises under its own body of law, and runs on its own timetable, so closing the creditor period does nothing to it:

• Medicare conditional payments. Where Medicare paid for treatment related to the injury, it has a statutory right of recovery from the settlement, enforced through the Benefits Coordination & Recovery Center. It must be resolved before disbursement, and it can be appealed or compromised.
• Medicaid. Florida’s agency asserts a claim against the portion of a recovery attributable to medical expenses under the state’s third-party liability statute.
• Hospital and provider liens created by county ordinance or by contract.
• ERISA and private health plan subrogation. A self-funded plan’s reimbursement right is governed by the plan document and federal law, and is often the least negotiable of the group.
• Letters of protection signed with treating providers during the injury period.

Two points follow. First, which column the settlement is apportioned into affects lien exposure, because most of these rights reach only the medical-expense component. Second, a settlement disbursed before liens are resolved is a live risk for the personal representative.

On our matters, lien resolution sits with the liability trial counsel, who negotiated the settlement and holds the medical record. What this office does is the estate-side half: making sure the apportionment reflects the lien exposure before it is agreed, and making sure nothing is disbursed until the resolutions are documented — because a personal representative who pays out over an unresolved lien can be left personally exposed. That is one of the practical arguments for taking a §733.708 order.

How is a Florida wrongful death settlement divided among survivors?

Not equally, and not by the will. Apportionment decides what each person actually receives, and it is negotiated rather than calculated. Two rules frame it. §768.22 requires that the amounts awarded to each survivor and to the estate be stated separately in the verdict — there is no single undivided sum. And §768.21 gives each survivor a different menu of damages, so a surviving spouse, a 19-year-old child and a 30-year-old child are not similarly situated even within one family.

In a settlement the same allocation has to be agreed rather than found by a jury, and it drives four separate outcomes at once:

• What each survivor nets.
• What the decedent’s creditors can reach — only the estate column, under §768.21(7).
• What liens can reach — largely the medical-expense component.
• What the contingency fee is measured against, since §768.26 deducts fees proportionally.

Any survivor may object. Under §768.25 an objection to the amount or the apportionment makes court approval a precondition to an effective settlement — and the right belongs to every survivor defined by §768.18(1), including one with no damage claim of their own. Brunson v. McKay, 905 So. 2d 1058 (Fla. 2d DCA 2005). An apportionment agreed among some survivors and sprung on the rest is the most common way a settled case comes apart.

What if the personal representative distributes the money to the wrong people?

An improper or unlawful distribution is a breach of fiduciary duty, and the remedy is surcharge — making the representative personally repay the loss. §733.609 makes a personal representative who breaches a fiduciary duty liable to interested persons for the resulting damage, and directs the court to award taxable costs including attorney’s fees in such proceedings. Removal under §733.504 is a separate remedy, and you generally want both. This is probate litigation territory.

Does a Florida wrongful death settlement need court approval?

Not always — and the live version of this page gets this wrong. The rule is narrower than “the probate court must approve every wrongful death settlement,” and the governing section is §768.25, not §768.24:

While an action under this act is pending, no settlement as to amount or apportionment among the beneficiaries which is objected to by any survivor or which affects a survivor who is a minor or an incompetent shall be effective unless approved by the court.

Approval under §768.25 is triggered by one of two things: a survivor objects, or a survivor is a minor or incompetent. An uncontested settlement among adult survivors, with no minor share, does not require approval under this section — the Second District so held in Guadalupe v. Peterson, 779 So. 2d 494 (Fla. 2d DCA 2001), where no survivor objected while the action was pending.

Who may object is broader than people assume. The right belongs to any survivor as §768.18(1) defines the term — including an adult child with no individual damage claim of their own. Brunson v. McKay, 905 So. 2d 1058 (Fla. 2d DCA 2005). That matters most in the medical negligence cases discussed below, where an adult child may be barred from recovering and still holds a veto over the apportionment.

(§768.24 is a different rule entirely — it governs what happens when a survivor dies before final judgment, limiting that survivor’s recovery to lost support and services up to their own death.)

Which court approves it — probate or civil?

§768.25 says only “the court.” In practice the petition is usually filed in the probate division, which supervises the personal representative, and an approval order entered there is a final, appealable order. Brunson v. McKay, above. Where the wrongful death action is pending in the civil division, that court also has authority under the section, and both divisions are sometimes involved in the same matter. Thompson v. Hodson, 825 So. 2d 941 (Fla. 1st DCA 2002).

Can the personal representative settle without a court order?

Under §733.612 a personal representative may, without court order, prosecute or defend claims for the protection of the estate (subsection (20)) and satisfy and settle claims (subsection (24)).

Against that, §733.708 provides that the court may authorize a compromise where it is in the best interest of the interested persons — and, critically, the order relieves the personal representative of liability or responsibility for the compromise.

So authorization is optional and protective rather than mandatory. A representative who settles on their own authority and is second-guessed later by a survivor has no order to stand behind. Most take the order.

Separately, §768.23 requires the court to protect any amount awarded for a minor or incompetent under the Florida Guardianship Law, and no settlement affecting a minor is effective without court approval. Nixon v. Bryson, 488 So. 2d 607 (Fla. 3d DCA 1986).

What does a minor’s share require in Florida?

The thresholds are specific, and “a guardian ad litem is always required” is not the rule:

Situation	What is required	Authority
Minor’s share, aggregate $15,000 or less	Natural guardian may settle and collect — no guardianship, no bond	§744.301(2); §744.387(2)
Minor’s net share over $15,000	A guardian of the property must be appointed	§744.387(2), (3)(b)
Minor’s gross settlement over $15,000	Court may appoint a guardian ad litem if it believes one is necessary — discretionary	§744.3025(1)(a)
Minor’s gross settlement $50,000 or more	Court shall appoint a guardian ad litem — mandatory — where there is no court-appointed guardian, the guardian may have an adverse interest, or representation is otherwise inadequate. Measured gross, with no reduction for present value, fees or costs	Fla. Prob. R. 5.636(d), (e)
A guardian is already appointed and has no adverse interest	No guardian ad litem needed	§744.3025(1)(e)
An action has been commenced for the minor	No settlement is effective without approval by the court with jurisdiction of the action	§744.387(3)(a)
Any survivor objects to amount or apportionment	Court approval	§768.25

Getting this wrong in either direction is expensive. Building a guardianship for a $9,000 share wastes months. Disbursing a $60,000 minor’s share without a guardian ad litem produces a settlement that can be undone.

Note that the thresholds are measured differently — guardianship turns on the net figure, the guardian ad litem on the gross. A $60,000 gross settlement that nets a minor $34,000 crosses both.

How much does a Florida wrongful death lawyer cost?

One statute governs it, and most families have never seen it. §768.26:

Attorneys’ fees and other expenses of litigation shall be paid by the personal representative and deducted from the awards to the survivors and the estate in proportion to the amounts awarded to them, but expenses incurred for the benefit of a particular survivor or the estate shall be paid from their awards.

Fees come off the top proportionally, and costs run up for one person’s benefit come out of that person’s share. Read alongside §768.21(7), it means the apportionment decision drives three things at once: what each survivor nets, what the fee is measured against, and what a creditor can reach.

Where a minor is involved, the fee itself is reviewable. In approving a settlement affecting a minor the court asks not only whether counsel was reasonably necessary and whether the contract was fair when signed, but whether it is fair in relation to the services actually performed — and it may cut the fee. In Nixon v. Bryson, 488 So. 2d 607 (Fla. 3d DCA 1986), a 40% contingency was reduced to one-third and the reduction was affirmed.

Do you take Florida wrongful death cases on contingency?

The liability claim is handled on contingency — no fee unless there is a recovery. That is the answer to the question most families are actually asking, which is not “what will this cost” but “do I have to pay anything up front.”

There are two separate pieces of work, and they are billed differently:

Work	How it is billed	What governs it
The liability claim — proving fault and damages against the responsible party	Contingency. No fee unless there is a recovery.	Rule Regulating The Florida Bar 4-1.5(f)(4), which applies specifically to wrongful death claims and requires a written contract, a statement of client’s rights, and stated percentages for settlement, trial and appeal
Opening and administering the estate — appointment, apportionment, court approval, closing	Quoted separately, in writing, before any work begins	§733.6171 sets the framework for probate attorney compensation
Court costs — the filing fee to open the estate, publication of the notice to creditors, certified copies	Costs, not fees. They exist under any arrangement and are discussed up front.	Set by the clerk of the circuit court
Where we act as co-counsel with your trial firm	Any division of fees between firms is documented in advance and disclosed to you in writing	Rule 4-1.5(g)

What you will not find on this page is a percentage or a case value. Fee terms depend on the posture of the case and belong in a written agreement you have read, not in an advertisement — and Rule 4-7.13 prohibits a lawyer from promising an outcome. Ask on the call; the numbers are given plainly and in writing before anything is signed.

For the probate component considered on its own, what probate costs in Florida sets out the ranges.

Is Florida’s “Free Kill” law still in effect in 2026?

Yes. As of the close of the 2026 regular session it remains the law. Two repeal attempts have now failed.

§768.21(8) reads:

The damages specified in subsection (3) shall not be recoverable by adult children and the damages specified in subsection (4) shall not be recoverable by parents of an adult child with respect to claims for medical negligence as defined by s. 766.106(1).

In plain terms: in a medical negligence death, a child 25 or over cannot recover for mental pain and suffering, and neither can the parents of a decedent who was 25 or over. The same losses are fully recoverable if the death was caused by a car, a truck, a fall or a defective product. Only medical negligence is carved out.

What that means in practice: an unmarried 40-year-old with no children who dies from a surgical error may leave no one with a claim for non-economic damages. The economic claim survives; the human one does not.

It has been challenged and upheld. The Florida Supreme Court rejected an equal protection challenge in Mizrahi v. North Miami Medical Center, Ltd., 761 So. 2d 1040 (Fla. 2000), on the reasoning adopted in Stewart v. Price, 718 So. 2d 205 (Fla. 1st DCA 1998) — that excluding adult children of medical malpractice decedents bears a rational relationship to limiting medical insurance costs. The Third District followed in Santiago v. Rodriguez, 281 So. 3d 603 (Fla. 3d DCA 2019).

And it cannot be routed around by pleading a survival claim instead. §768.20 abates the personal injury action and §768.21(8) bars the wrongful death damages, leaving an adult child with neither. The Fourth District said so directly, while noting it was bound to that result. Salfi v. Columbia/JFK Medical Center Ltd. Partnership, 942 So. 2d 417 (Fla. 4th DCA 2006).

What an adult child does retain is standing to object to the amount or apportionment of a settlement under §768.25, even with no damage claim of their own. Brunson v. McKay, above.

Has Florida’s Free Kill law been repealed?

• 2025 — HB 6017. Passed the House 104–6 on 26 March 2025 and the Senate 33–4 on 1 May 2025. Vetoed by Governor DeSantis on 29 May 2025, citing the absence of damage caps. The House declined to attempt an override on 5 June 2025.
• 2026 — HB 6003. Passed the House 88–17 on 15 January 2026. The Senate companion never received a committee hearing and the bill died in Senate Rules on 13 March 2026.

The provision has been on the books since 1990 and is unchanged. If your case involves a medical death and an adult decedent or adult child, this is the first thing to check — before anything else about the case matters.

Can you sue a city, county or public hospital for wrongful death in Florida?

A city vehicle, a public hospital, a county road crew, a school district. The rules change completely, and the deadlines are shorter.

Under §768.28:

• Damages are capped at $200,000 per person and $300,000 per incident. Anything above that requires a claim bill passed by the Legislature.
• A written notice of claim must be presented within 2 years for wrongful death — a year shorter than the three years allowed for other claims under the same section.
• The agency has 90 days in wrongful death and medical malpractice claims; non-response is deemed a final denial. Suit cannot be filed until that period runs.

Miss the notice and the claim is gone regardless of how strong the liability is. This is the single most common way a meritorious case against a public entity is lost.

Does a nursing home arbitration agreement block a wrongful death lawsuit?

Sometimes, and it is the first document to find in a nursing home death. Many Florida facilities present an arbitration agreement in the admission packet. If it is enforceable, the case is decided by a private arbitrator rather than a jury, often with limited discovery and no appeal on the merits.

Several things are worth checking before anyone accepts that:

• Who signed it. A relative who was not the resident’s authorized agent may have had no power to bind them. A health care surrogate designation is not automatically authority to waive a jury trial, and a power of attorney may or may not reach arbitration depending on its terms.
• Whether signing was a condition of admission. An agreement presented as optional, and signed after admission, stands on different footing from one buried in the intake stack.
• Whether it binds the survivors at all. The wrongful death claim belongs to the survivors and the estate under §768.20 — not to the resident personally — and Florida courts have had to work through when a resident’s signature reaches a survivor who never signed anything.
• Whether its terms are enforceable. Provisions capping damages or limiting remedies have been struck as against public policy, and in some cases have taken the whole agreement with them.

None of this is decided on the page — it is decided on the document. Bring the admission paperwork to the first conversation.

Can you still recover if your relative was partly at fault?

Only if their share of fault was 50% or less.

Since CS/CS/HB 837 (2023), §768.81 operates as a modified comparative negligence bar: a claimant found more than 50% at fault recovers nothing at all. At 50% or below, the award is reduced in proportion to the share of fault.

This is not the old rule. Florida was a pure comparative fault state for decades, in which a 90%-at-fault claimant still recovered 10%. Insurers litigate the decedent’s own conduct much harder now, because pushing fault one percentage point past fifty ends the case rather than trimming it.

What if the family cannot agree who serves as personal representative?

Two problems arrive at once: nobody can file, and the two-year clock keeps running.

§733.301 sets the order of preference — the person named in the will, then the surviving spouse, then a person selected by a majority in interest of the beneficiaries, in a testate estate; in an intestate estate the surviving spouse, then a majority-selected heir, then the nearest heir. Contests usually turn on that majority-in-interest calculation, on qualification, or on a conflict of interest where the proposed representative is also a defendant or a competing survivor.

While that is unresolved, the estate is not without a caretaker. Under §733.501 the court may appoint a curator — a temporary fiduciary to take charge of and preserve assets until letters of administration issue. Where there is significant danger that property will be wasted or removed, the appointment can be made without notice.

What a curator does not do is file the lawsuit. Only a personal representative can. Where an appointment fight is running against a limitations deadline, the deadline is the argument to make to the court, and it is frequently what breaks the deadlock. If the dispute is genuinely contested, it becomes probate litigation and should be treated as such immediately, not after the clock expires.

Can you handle the case if the family lives out of state or overseas?

Common, and rarely an obstacle. Most of a probate administration runs on filings, and Florida circuits hold the large majority of probate hearings remotely.

Two rules matter. §733.304 restricts who may serve as personal representative when they are not a Florida resident — a non-resident qualifies only through a defined family relationship to the decedent. A non-resident who does qualify must designate a Florida resident agent. See out-of-state executor in Florida.

Where the decedent was domiciled elsewhere but the fatal incident happened in Florida, the route is ancillary administration rather than a full Florida estate.

Do you need one lawyer or two for a wrongful death and probate case?

Two distinct bodies of law: liability and damages on one side, estate administration and distribution on the other. Three workable structures.

Structure	Works best when	Watch for
One firm handles both	Uncontested appointment, straightforward estate, survivors in agreement	Whether the firm actually practices probate, or simply files the petition and hopes
Trial firm plus probate co-counsel	Serious liability case; contested or complex estate; minors among the survivors	Fee division must be documented in advance under Rule 4-1.5(g); deadlines must have a single owner
Separate, independent counsel	Survivors are in conflict; the proposed representative is adverse to some beneficiaries	Genuine conflicts sometimes require it — but two firms with no protocol miss probate deadlines

This office most often works in the second row: the trial firm carries liability, and we carry the estate — appointment, §733.708 authorization where it is wanted, apportionment, creditor and lien coordination, guardianship for minor shares, and closing.

How does a Florida wrongful death case work, step by step?

Two tracks, run in parallel:

1. Petition for Administration is filed in the county where the decedent was domiciled — regardless of where the incident happened.
2. Letters of Administration issue. Two to four weeks uncontested; months if the appointment is fought.
3. The complaint is filed, naming every potential beneficiary and their relationship as §768.21 requires.
4. Notice to creditors is published and served, starting the claims period that determines what the estate column is exposed to.
5. The civil case runs — discovery, depositions, mediation, trial if it comes to that.
6. Apportionment is negotiated between the survivor and estate columns. This decides net outcomes; it is not a formality.
7. Court approval where §768.25 requires it, or §733.708 authorization for the representative’s protection.
8. Guardianship or guardian ad litem for any minor share above the thresholds above.
9. Liens resolved, fees and costs deducted under §768.26, proceeds distributed, estate closed.

If you are at step zero and no one has died more than a few weeks ago, start with what to do when someone dies in Florida.

What do you need for a free consultation?

• Certified copy of the death certificate
• The original will, if one exists
• The names, ages and relationships of everyone who might be a survivor — ages matter, because of the under-25 rule
• Any accident report, hospital record, or correspondence from an insurer
• Whether any government entity may be involved, and the date of the incident
• The name of any lawyer already retained on the liability side

What areas of Florida does the firm serve?

Estates are opened in all 67 counties. The heaviest concentration of this work is South and Central Florida:

Region	Counties	Communities served
Miami-Dade	Miami-Dade	Miami, Coral Gables, Hialeah, Kendall, Doral, Aventura, Brickell, Coconut Grove, Downtown Miami, The Hammocks, Fontainebleau, Overtown, Liberty City, Wynwood, Coral Way, Homestead, Cutler Bay, Palmetto Bay, Pinecrest, South Miami, West Miami, Miami Beach, Miami Lakes, Miami Gardens, Miami Shores, North Miami, Opa-locka, Sunny Isles Beach, Surfside, Bal Harbour, Tamiami, Florida City
Broward	Broward	Fort Lauderdale, Hollywood, Pembroke Pines, Plantation, Davie, Weston, Sunrise, Tamarac, Margate, Coconut Creek, Cooper City, Dania Beach, Oakland Park, Wilton Manors, Lauderhill, North Lauderdale, Southwest Ranches, Hallandale Beach, Pompano Beach, Lighthouse Point
Palm Beach	Palm Beach	West Palm Beach, Boca Raton, Delray Beach, Boynton Beach, Lake Worth, Jupiter
Central Florida	Orange, Osceola, Seminole, Lake, Volusia, Polk, Brevard	Orlando, Kissimmee, Celebration, Sanford, Deltona, Winter Park, Edgewood, The Villages
Tampa Bay	Hillsborough, Pinellas, Pasco, Manatee	Tampa, St. Petersburg, Clearwater, Gulfport, Bay Pines, Seminole, Palmetto, Ybor City
North & Southwest	Duval, St. Johns, Alachua, Leon, Lee, Collier, Sarasota, Charlotte, Okaloosa	Jacksonville, St. Augustine, Gainesville, Tallahassee, Fort Myers, Cape Coral, Naples, Sarasota, Fort Walton Beach

Consultations are held by phone or video, in English and Spanish. See the full service area list.

Where is a Florida wrongful death case filed?

Two courts, often two counties. The probate estate is opened in the circuit court for the county where the decedent was domiciled. The civil action is filed where the incident occurred or where the defendant may be sued. They are frequently not the same place, and both run at once.

County probate court guides: Miami-Dade · Broward · Palm Beach · Hillsborough · Pinellas · Duval · Orange and Osceola.

Frequently asked questions about Florida wrongful death claims

Can a family member file a wrongful death claim without opening probate in Florida?

No. §768.20 gives the right of action to the personal representative alone, and only the probate court can appoint one. This holds even where the decedent owned nothing — the estate is opened for the sole purpose of creating someone with authority to sue.

Who gets the money in a Florida wrongful death case?

The survivors defined by §768.18 — spouse, children, parents, and dependent blood relatives or adoptive siblings — each recovering the specific categories §768.21 assigns to them. The estate separately recovers the decedent’s own lost earnings and net accumulations. These are two different columns with two different sets of rules.

How long does it take to get Letters of Administration?

Two to four weeks where the appointment is uncontested. A contested appointment can take months, and the two-year limitations period does not pause while it runs.

Can adult children recover for a parent’s death in Florida?

For most causes of death, yes — all children recover under §768.21(3) where there is no surviving spouse. In medical negligence cases, no: §768.21(8) bars adult children from those damages, and bars the parents of a decedent aged 25 or over. “Adult” here means 25 or over, because §768.18(2) defines minor children as those under 25. The provision has been upheld against constitutional challenge, most recently in Santiago v. Rodriguez, 281 So. 3d 603 (Fla. 3d DCA 2019).

Is a wrongful death settlement taxable in Florida?

Compensatory damages for personal physical injury or physical sickness are generally excluded from gross income under federal law, and Florida has no personal income tax. Punitive damages and interest are generally taxable. Allocation in the settlement documents matters, and this is a question for a tax adviser on the specific numbers.

Does a guardian ad litem have to be appointed for a minor’s share?

Not always. Under Fla. Prob. R. 5.636(d) appointment is mandatory where the gross settlement is $50,000 or more and the minor is not otherwise adequately represented. Between $15,000 and $50,000 gross, §744.3025(1)(a) makes it discretionary. Separately, a guardian of the property must be appointed where the minor’s net share exceeds $15,000 (§744.387).

What is the difference between a wrongful death claim and an estate claim in Florida?

They are two columns inside the same lawsuit. The wrongful death claim compensates the survivors for their own losses under §768.21(1)–(5) — lost support and services, loss of companionship, mental pain and suffering. The estate claim recovers the decedent’s losses under §768.21(6) — lost earnings from injury to death, lost net accumulations, and medical and funeral bills charged to the estate. Both are brought by the personal representative, but they compensate different people and only the estate column is exposed to creditors.

How much is a Florida wrongful death case worth?

There is no average worth quoting, and Florida Bar Rule 4-7.13 prohibits a lawyer from promising an outcome. What drives the number is identifiable: the survivors’ ages and relationships, the decedent’s earnings and life expectancy, available insurance and whether an excess carrier is involved, whether punitive damages are in play under §768.72, whether a §768.28 cap applies because a government entity is a defendant, whether §768.21(8) removes the non-economic claim in a medical case, and the decedent’s own share of fault under the 51% bar. Any figure quoted before those are known is a guess.

Can you recover for loss of consortium in a Florida wrongful death case?

Not under that name. The married-couple loss of consortium claim exists in Florida personal injury law, but it does not survive a death caused by the injury — §768.20 abates it. What replaces it is the surviving spouse’s own statutory claim under §768.21(2) for loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury. Children have a parallel claim under §768.21(3) for lost parental companionship, instruction and guidance.

Can a sibling or grandparent file a wrongful death claim in Florida?

Only the personal representative files. Whether a sibling or other blood relative recovers depends on dependency: §768.18(1) includes blood relatives and adoptive siblings only where they were partly or wholly dependent on the decedent for support or services. Grandparents are not listed as survivors in their own right. Stepchildren are not survivors unless legally adopted.

Do I need a wrongful death lawyer near me, or can you handle it from Miami?

Probate is filed in the county where the person was domiciled, and Florida circuits hold most probate hearings remotely. The work is done by filing rather than by proximity, and this office handles estates in all 67 counties, in English and Spanish. Where a case calls for local trial counsel on liability, we serve as probate co-counsel alongside them.

Who handles these cases at Lorenzo Law?

• Jose M. Lorenzo, Jr., Florida Bar No. 107002, licensed and in active practice in Florida since 2005 — verifiable free in The Florida Bar’s member directory.
• Practice concentrated in probate, estate administration and estate litigation, including the probate component of Florida wrongful death claims.
• Available as co-counsel to trial firms that need the estate opened and the recovery protected.
• English and Spanish, in all 67 Florida counties.

Speak to a lawyer about opening the estate. Jose M. Lorenzo, Jr. — (305) 224-6811. Free consultation in English or Spanish. You can also write from the contact page.

Related: Florida probate litigation · surviving spouse rights · the elective share · the Florida probate process · guardianship for a minor’s share. Esta página en español: abogado de herencias en Florida.

This page offers general information about Florida law and does not constitute legal advice for a specific case. Reading it does not create an attorney-client relationship. Every case turns on its own facts, and the law changes. Prior results do not guarantee future outcomes.

Statutes verified against the Florida Statutes on 23 August 2026.