Who Can File a Wrongful Death Lawsuit in Fort Lauderdale?
If you have lost a loved one due to someone else's negligence in Fort Lauderdale, you may wonder who has the legal right to file a wrongful death claim. Under the Florida Wrongful Death Act, Florida Statutes §§ 768.16 through 768.26, only the personal representative of the decedent's estate can bring the lawsuit on behalf of the estate and all eligible survivors. Understanding who qualifies to file, who counts as a survivor, and what damages each family member may pursue is critical for protecting your family's rights.
If you need guidance, Englander Peebles is here to help. Call 954-226-9134 or contact us today to speak with a Fort Lauderdale wrongful death lawyer.
The Personal Representative: The Only Person Who Can File for Wrongful Death in Ft Lauderdale
Under Florida Statute § 768.20, a wrongful death lawsuit must be brought by the personal representative of the decedent's estate, not by a surviving spouse, child, or parent acting on their own. This is one of the most misunderstood aspects of wrongful death law in Florida. Even if you are the person most directly affected, you cannot file the lawsuit yourself unless you have been appointed as the personal representative.
The personal representative acts as a legal figurehead for the entire claim, filing the suit on behalf of all survivors and the estate. While settlement proceeds generally belong to the survivors rather than the estate, only the appointed representative has authority to initiate legal action. If no personal representative has been appointed, the court must appoint one before the wrongful death lawsuit can proceed.
Florida Statute § 733.302 establishes that the personal representative must be sui juris (legally competent) and a Florida resident at the time of the decedent's death. However, under Florida Statute § 733.304, certain non-resident family members may still qualify to serve as personal representative, including: (1) a legally adopted child or adoptive parent of the decedent; (2) a person related by lineal consanguinity to the decedent (which includes parents and children); (3) a spouse, or a brother, sister, uncle, aunt, nephew, or niece of the decedent, or someone related by lineal consanguinity to any such person; or (4) the spouse of a person otherwise qualified under this section. You can learn more about who has authority to file and the appointment process.
💡 Pro Tip: If your loved one passed away without a will and you believe you should serve as personal representative, do not wait to begin the probate process. Delays can slow down the entire claim and critical evidence may be lost.
How the Personal Representative Is Chosen Under Florida Law
The selection process depends on whether the decedent had a will. Florida Statute § 733.301 establishes a clear order of preference for both situations.
When the Decedent Had a Will
If your loved one left a will, the person nominated in that document generally receives first preference. If the nominee is unavailable or unwilling, the court looks next to a person selected by a majority in interest of those entitled to the estate, then to a devisee under the will.
When the Decedent Died Without a Will (Intestate)
Many fatal accident victims pass away without an estate plan. In intestate cases, the surviving spouse holds first preference. If there is no surviving spouse, the court looks to a person selected by a majority in interest of the heirs, then to the heir nearest in degree.
| Scenario | First Preference | Second Preference | Third Preference |
|---|---|---|---|
| Decedent had a will | Nominee in the will | Person selected by majority in interest of those entitled to the estate | Devisee best qualified |
| Decedent died without a will | Surviving spouse | Person selected by majority in interest of heirs | Heir nearest in degree best qualified |
💡 Pro Tip: For a married decedent who dies without a will, the fee agreement with the wrongful death attorney must generally be signed by the surviving spouse. Contact an attorney early for proper paperwork.
Who Qualifies as a "Survivor" Under the Florida Wrongful Death Act
Florida law defines "survivors" more broadly than many families expect. Under Florida Statute § 768.18, eligible survivors include the decedent's spouse, children, and parents. The statute also extends eligibility to blood relatives and adoptive brothers and sisters who were partly or wholly dependent on the decedent for support or services.
A child born out of wedlock to the mother qualifies as a survivor, but a child born out of wedlock to the father does not unless the father recognized a responsibility for the child's support. Florida law also defines "minor children" as children under 25 years of age for purposes of the Wrongful Death Act.
Every potential beneficiary must be identified in the complaint with their relationship to the decedent stated. Missing a survivor in the initial filing can create complications.
💡 Pro Tip: Even if you are unsure whether a family member qualifies as a survivor, mention them to your attorney. The definition under the Florida Wrongful Death Act is broader than most people realize.
What Damages Can Each Survivor Recover in a Wrongful Death Claim in Broward County?
The type and amount of damages available depend on each survivor's relationship to the decedent. Florida Statute § 768.21 outlines specific categories:
- Every survivor may recover the value of lost support and services from the date of the decedent's injury to death (with interest), and future loss of support and services from the date of death reduced to present value.
- A surviving spouse may additionally recover for loss of companionship, protection, and mental pain and suffering.
- Minor children (under 25), and all children if there is no surviving spouse, may recover for lost parental companionship, instruction, guidance, and mental pain and suffering.
- Parents of a minor child may recover for mental pain and suffering. Parents of an adult child may recover for mental pain and suffering only if there are no other survivors.
- The personal representative may recover on behalf of the estate for lost earnings, prospective net accumulations, and medical or funeral expenses paid by the estate.
An important limitation applies in medical negligence cases under § 768.21(8). Adult children cannot recover for lost parental companionship, and parents of an adult child cannot recover for mental pain and suffering when the wrongful death arises from medical negligence.
How Florida's Comparative Fault Law Affects Wrongful Death Cases
Florida's comparative fault statute may reduce or bar recovery depending on the circumstances. Under Florida Statute § 768.81(6), any party found to be greater than 50% at fault for their own harm may not recover any damages. For wrongful death cases involving car accidents, slip and falls, or other non-medical negligence, the decedent's own percentage of fault could impact survivors' ability to recover.
However, this rule does not apply to wrongful death actions arising from medical negligence under Chapter 766.
💡 Pro Tip: Insurance companies often investigate fault aggressively after a fatal accident. Contact an attorney immediately so evidence can be preserved and your loved one's actions can be properly documented and defended.
What Triggers a Wrongful Death Claim in Fort Lauderdale
Florida's right of action for wrongful death arises under § 768.19 when a person's death is caused by the wrongful act, negligence, default, or breach of contract or warranty of another person. If the injured person would have had the right to sue had they survived, that same liability transfers to a wrongful death claim.
This right of action applies broadly, including deaths under circumstances constituting a felony and deaths on navigable waters. A Fort Lauderdale fatal accident attorney can help you determine whether the facts of your case support a claim.
Important Deadlines and Government Claims
Families should be aware of specific time limits that apply to wrongful death lawsuits. The general statute of limitations for wrongful death in Florida is two years from the date of death under Florida Statute § 95.11(4)(d). Claims against the state of Florida or its agencies and subdivisions, including county and municipal entities in Broward County, are subject to a four-year limitations period under Florida Statute § 768.28(14) (with wrongful death and medical malpractice actions following the shorter timeframes in § 95.11), and those claims have specific pre-suit notice requirements, including written notice to the appropriate agency within three years of the incident under § 768.28(6)(a). Wrongful death claims arising from medical malpractice follow the separate timeframe established in § 95.11(4)(c), generally a two-year limitations period (with a four-year repose period in many cases), and are governed by the medical malpractice statute rather than the general wrongful death statute of limitations.
These deadlines are strict, and missing them can permanently bar your claim. Contact an attorney as soon as possible after a loved one's death. Filing requirements under Florida probate law for appointing a personal representative add another layer of time sensitivity.
💡 Pro Tip: If a government vehicle, county-maintained road, or municipal property played any role in your loved one's death, separate notice and filing requirements may apply. An attorney familiar with claims against government entities can help you navigate these additional steps.
Frequently Asked Questions
1. Can a family member file a wrongful death lawsuit on their own in Florida?
No. Under Florida Statute § 768.20, only the personal representative of the decedent's estate may file a wrongful death lawsuit. Individual family members, even a surviving spouse or child, cannot bring the claim directly.
2. What if the person who died did not have a will?
The court will follow a statutory order of preference to appoint a personal representative. The surviving spouse receives first preference. If there is no surviving spouse, the court looks to a person selected by a majority in interest of the heirs, followed by the heir nearest in degree.
3. Are children over 18 eligible for damages in a Florida wrongful death case?
Yes, in many cases. Florida law defines "minor children" as children under 25 years of age for purposes of the Wrongful Death Act under § 768.18. Children under 25 may recover for lost parental companionship, instruction, guidance, and mental pain and suffering. However, in medical negligence cases, adult children face additional limitations.
4. Does the personal representative keep the settlement money?
Generally, no. While the personal representative is the only person authorized to file the claim, settlement proceeds typically belong to the survivors rather than the estate. The representative's role is to manage the legal process, not to personally benefit beyond what the estate itself is entitled to recover.
5. Can someone who lives outside Florida serve as personal representative?
Florida Statute § 733.302 generally requires the personal representative to be a Florida resident and legally competent. However, under Florida Statute § 733.304, certain non-resident family members may still qualify to serve as personal representative, including: (1) a legally adopted child or adoptive parent of the decedent; (2) a person related by lineal consanguinity to the decedent (which includes parents and children); (3) a spouse, or a brother, sister, uncle, aunt, nephew, or niece of the decedent, or someone related by lineal consanguinity to any such person; or (4) the spouse of a person otherwise qualified under this section.
Protecting Your Family's Rights After a Wrongful Death in Fort Lauderdale
Losing a loved one to someone else's negligence is devastating, and the legal process can feel overwhelming. Florida law provides a clear path for families to seek accountability and compensation, but only if the right person files the claim within the required deadlines. Acting quickly to appoint a personal representative, identify all eligible survivors, and preserve critical evidence gives your family the strongest possible foundation.
You do not have to figure this out alone. Englander Peebles has extensive experience helping families throughout Fort Lauderdale and South Florida navigate wrongful death claims with compassion and determination. Call 954-226-9134 or reach out to us online for a free consultation. Contact Englander Peebles today.