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The Florida Wrongful Death Act defines wrongful death as the death of a person caused by the negligence or wrongful acts of another party. Deaths caused by the failure of someone to act when they had a duty or obligation to do so also fall within the definition of wrongful deaths. Wrongful death claims may be brought only if the victim would have had the right to sue for damages if they survived.
Some states permit specific family members to bring wrongful death claims, but Florida is not one of them. Only the representative of the estate of the deceased victim is authorized to bring a wrongful death claim seeking damages for the estate of the deceased and for the surviving members of the deceased’s family designated by statute as being entitled to compensation.
The personal representative of an estate is usually the executor named in a last will and testament left by the victim. When someone dies without leaving a will or if the executor named in a will dies or is otherwise unavailable to bring the wrongful death claim, a court shall appoint someone to serve as the representative of the estate.
The Wrongful Death Act defines the surviving family members on whose behalf a claim may be brought for damages. They include the following relatives of the deceased victim:
For purposes of wrongful death claims, children who are not at least 25 years of age are treated as minors for purposes of the types of damages they may claim under the law.
The damages recoverable in a wrongful death claim are the same as the victim might have recovered had he or she survived the accident. For example, compensation for the pain and suffering of the victim is not recoverable in a wrongful death case. However, the pain and suffering inflicted upon the surviving family members could be part of the claim.
Damages recoverable in a wrongful death claim are different for the estate and for the surviving family members. The estate is entitled to recover the following:
The estate can also recover lost earnings the deceased might have been expected to earn had he or she survived.
Surviving family members entitled to share in the recovery in a wrongful death claim may recover the following damages:
The statute creating wrongful death claims uses a complex method to calculate. Some of the damages recoverable by surviving members of the victim’s family with regard to calculating future support that was lost due to the death of the victim is one example. A personal injury lawyer should be consulted for advice and guidance.
Family members should not delay contacting a personal injury attorney to pursue a wrongful death claim. The statute of limitations, the time within which a lawsuit must be filed, is only two years from the date of death of the victim.
The two years to file a wrongful death claim is shorter than the four years for a personal injury claim. Resist the temptation to delay meeting with an attorney to begin the process of suing for damages. Keep in mind that a wrongful death claim can only be brought by the representative of the deceased victim’s estate.
The authority to act on behalf of the estate requires a court order appointing the representative. This could take time to process through the courts. It could also and add to the time it could take before the wrongful death claim can begin.