Losing a loved one because of someone else’s negligence is devastating. The legal path that follows is complex, time-sensitive, and different from a typical personal injury case. This guide explains what a Florida wrongful death claim is, why specialization matters, how to evaluate counsel, how probate intersects with the lawsuit, and what to expect procedurally—so you can choose an attorney with confidence.

Understanding Wrongful Death Claims

What constitutes a wrongful death?

Under Florida’s Wrongful Death Act, a claim exists when a person’s death is caused by another’s wrongful act or negligence. The claim also applies when the conduct involves a default or a breach of contract or warranty. The decedent must have been able to bring the claim had they survived. Only the personal representative of the decedent’s estate may file the lawsuit. Any recovery is distributed for the benefit of the survivors and the estate. Florida law defines “survivors” as the decedent’s spouse, children, adopted children, and parents. It also includes certain blood relatives and adoptive siblings who depended on the decedent for support or services. Certain children born out of wedlock may also qualify as survivors under the statute. The statute further describes the categories of damages that may be recovered.

Florida law also sets out the damages survivors and the estate may recover, including lost support and services, mental pain and suffering for qualifying survivors, medical and funeral expenses, and (for the estate) certain lost earnings and net accumulations, all subject to detailed statutory rules.

Why hiring a specialized attorney matters

Wrongful death litigation is statute-driven. It requires fluency with the Wrongful Death Act, the probate code, evidence rules that govern medical bills and expert proof, and defenses like comparative fault. Florida also imposes strict deadlines: a wrongful death claim generally must be filed within two years of the date of death, with narrow exceptions. Picking counsel who lives in these statutes every day is not a luxury—it is essential.

Key Qualities to Look for in a Wrongful Death Attorney

An effective Florida wrongful death attorney should be able to translate dense statutory language into a clear plan for your family. Look for:

• Mastery of the Wrongful Death Act. Your lawyer should explain, in plain language, who qualifies as a “survivor,” how damages are allocated between survivors and the estate, and how courts handle apportionment and settlement approvals—especially when minors are involved.

• Command of evidence and damages rules. Florida statute §768.0427 now regulates what proof of medical expenses a jury may hear in personal injury and wrongful death actions, including what amounts are admissible for past and future medical bills. Your lawyer should build your damages case with that framework in mind from day one.

• Comparative fault strategy. Since 2023, Florida follows a modified comparative negligence system for most negligence claims. Your recovery is reduced by your loved one’s percentage of fault, and in many negligence cases recovery is barred if that percentage exceeds 50 percent (medical malpractice has distinct features). A capable attorney will evaluate fault early and plan discovery accordingly.

• Experience with special defendants. Claims against government agencies require presuit notice and are subject to sovereign immunity limits unless the Legislature approves a higher payment. Missing the notice deadline can be fatal to a claim.

• Medical negligence nuance. If the wrongful death arose from alleged medical malpractice, Florida’s medical negligence statutes impose additional presuit requirements and narrow which survivors may recover certain non-economic damages. You need counsel experienced with Chapter 766 and §768.21(8).

Initial consultation: what to expect

At the first meeting, expect a listening session. The attorney should gather the timeline, providers, witnesses, records, and the family tree of potential survivors. You should leave the consult with: (1) a plain-English explanation of whether the facts fit the Wrongful Death Act; (2) a roadmap for opening an estate and appointing a personal representative; (3) a plan for collecting records and preserving evidence; and (4) a candid discussion of damages, fault allocation, deadlines, and costs.

Smart questions to ask

Ask how the firm will: (1) identify and prove each category of damages under §768.21; (2) handle settlement approval and distribution (especially with minors); (3) navigate comparative fault; (4) address medical bill evidence under §768.0427; (5) handle presuit notice and caps if a government entity is involved; and (6) meet the two-year limitations period and any shorter notice deadlines.

Working with a Florida Probate Attorney

How probate issues impact wrongful death claims

Florida law requires that a wrongful death action be filed by the personal representative of the decedent’s estate. That means you will often open a probate file to appoint the personal representative who will act for the survivors and the estate in the civil case. The statute also directs courts to approve settlements that affect minors or where survivors disagree, and it requires that estate awards are subject to probate creditor claims. Choosing litigation counsel who works smoothly with probate counsel keeps these moving parts aligned.

When to bring probate counsel into the team

In straightforward cases, your wrongful death attorney may coordinate the probate opening and the personal representative’s appointment. In more complex estates—multiple jurisdictions, disputed personal representative selection, or significant creditor issues—adding a dedicated Florida probate attorney early is prudent. That lawyer helps structure the estate, obtain the necessary court approvals, and ensure that distributions conform to both the Wrongful Death Act and the probate code.

Practical issues that often decide these cases

Who may recover and for what. The Florida statutes detail which survivors can recover which categories of damages and when the estate may recover lost earnings or net accumulations. A knowledgeable attorney will explain how this applies to your family’s situation.

Deadlines and notice. The general limitations period for wrongful death is two years. Claims against government entities require written notice within specific time frames and are subject to recovery limits unless a claims bill authorizes more. Your attorney should calendar these deadlines immediately.

Comparative fault and defense strategies. Florida’s comparative fault statute governs how responsibility is allocated among the parties, which can reduce (or, in some negligence contexts, bar) recovery. Your attorney should gather evidence early to counter fault arguments and protect the value of your claim.

Medical bills and proof. Florida’s evidence statute for medical expenses requires careful presentation of past payments, amounts necessary to satisfy unpaid charges, and future care needs. Building the record to fit §768.0427 is now part of competent wrongful death practice.

How to choose the right lawyer for your family

Selecting counsel is part credentials, part chemistry. Look for: (1) demonstrated results in Florida wrongful death cases; (2) comfort explaining statutes and procedure without legal jargon; (3) a clear plan for investigation, expert engagement, and damages proof; (4) transparent discussion of fees, costs, and timelines; and (5) a willingness to answer uncomfortable questions about risk.

The legal process and timeline in Florida

A typical Florida wrongful death case begins with investigation and preservation of evidence, opening the estate and appointing the personal representative, notifying potential defendants (and, if a governmental defendant is involved, serving statutory notice), and then filing suit within the limitations period. After filing, the parties exchange discovery, address comparative fault and damages, take depositions, and often explore mediation. If settlement is reached, the court may need to approve it—especially where minors are involved or survivors disagree—and the estate and survivors’ allocations are made consistent with the statute. If the death stems from alleged medical negligence, expect additional presuit steps under Chapter 766 before a lawsuit may be filed.

Timelines vary with the complexity of the facts, the number of defendants, and court calendars. What should not vary is your lawyer’s vigilance in meeting statutory prerequisites, preserving evidence, and keeping you informed.

Conclusion

Choosing the right wrongful death attorney is about fit, fluency, and follow-through. Florida’s Wrongful Death Act controls who may recover, for what categories of loss, and how the lawsuit must be filed and resolved. The best lawyer for your family will treat the statute as a roadmap, not an obstacle; will coordinate probate and litigation in tandem; will anticipate defenses grounded in comparative fault and evidence rules; and will pursue a timeline that protects your claim and respects your grief. If you are weighing options or already facing a dispute, consider a consultation with a Florida attorney who can evaluate the facts, explain your rights under the Wrongful Death Act, and craft a plan that honors both the law and your loved one.

This article is for general information only and is not legal advice. Every case turns on its facts and the precise language of the governing statutes and rules. If you need legal advice about a potential wrongful death claim in Florida, consult an experienced Florida attorney.

©2025 The Hernandez Legal Group wrote and published this article. All rights reserved.