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Damages Survivors Can Recover Based on Relationship to the Deceased

2015-02-23T10:31:19+00:00

Wrongful death claims are lawsuits filed on behalf of the deceased’s estate by the personal representative of the estate on behalf of the survivors of a deceased individual. In Florida, the law governing Wrongful Death actions is the Florida Wrongful Death Act. The Florida Wrongful Death Act allows said survivors – the parent, child, or spouse, or any other relative or adoptive sibling dependent on the deceased for financial or emotional support – to seek compensation for lost support or services after the death of their loved one.

What Can A Parent Recover?

Parents of a Deceased Minor Child

In addition to lost support and services and medical and funeral expenses, parents of a deceased minor child may also recover for mental pain and suffering.

Determining damages for lost support and services with regard to a minor child is difficult. While assigning a monetary value to lost support and services for an earning adult may involve a fair amount of computation, it is quantifiable. With a child, however, it is harder to determine.

To calculate the financial loss for a child’s death, juries may assess the child’s age, health, habits, expected life span, and potential earnings and work expectancy. Although speculative, the jury will also consider what the child would have contributed to his or her parents’ support. As a guide, juries may use work-life expectancy tables to assist with their calculations. Even with this assistance, however, the younger the child is at the time of death, the more difficult it becomes to accurately ascertain or guess how much that child would have contributed to his or her parents’ support. It is easier to speculate, for example, how much a straight-A earning high school senior who was accepted to an Ivy League university may earn than it would be to speculate how much a young child would have earned.

Determining the mental pain and suffering the parents of a deceased minor child have endured is also a difficult process. As any parent knows, the love one has for a child is a love like no other. Losing a child inflicts pain like no other. Like all other determinations and categories under the Florida Wrongful Death statute, however, the amount can vary greatly depending on the evidence presented and the facts and circumstances of each case.

Parents of an Adult Child Where There Are No Other Survivors

In addition to lost support and services, and medical and funeral expenses, parents of a deceased adult child may also recover for mental pain and suffering if there are no other survivors. However, mental pain and suffering are not recoverable by parents of an adult child when the adult child dies as a result of medical malpractice.

While determining mental pain and suffering for parents of an adult child when there are no survivors, the dynamic may be slightly different than it is for parents of deceased minor children. While parental bonds with adult children are often strong, unfortunately, this is not always the case. In fact, in some situations, adult children’s relationship with their parents may have soured or the adult child may be completely estranged from his or her parents. As with the surviving spouse, evidence may be introduced to demonstrate the strength or weakness of the relationship between the adult child and the surviving parents to help determine these damages.

What Can A Child Recover?

Adult Children (anyone 25 years or older)

In addition to lost support and services and funeral expenses (if paid by the adult children), adult children of the decedent recover lost parental companionship, instruction and guidance and for mental pain and suffering only if the decedent had no surviving spouse. However, if the parent dies as a result of medical malpractice, mental pain and suffering and lost parental companionship, instruction and guidance are not recoverable.

Minor Children

In addition to lost support and services, minor children may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering. (Also, if both spouses die within 30 days of one another as a result of the same wrongful act or series of acts arising out of the same incident, each spouse is considered to have been predeceased by the other.)

The degree to which the parents are involved in the child’s life may be a determining factor in the amount minor children may recover for lost parental companionship, instruction, and guidance. If the parents were very involved in the day-to-day activities of the child and evidence can be introduced demonstrating same, a jury may consider that in the minor child’s favor and award damages accordingly.

What Can A Surviving Spouse Recover?

What damages can the surviving spouse of the decedent recover? In addition to lost support and services and medical and funeral expenses (if paid by the surviving spouse), the surviving spouse of a decedent may also recover mental pain and suffering and loss of decedent’s companionship and protection.

How Is Mental Pain and Suffering Determined?

There is no hard-and-fast rule for calculating mental pain and suffering. Since mental pain and suffering is intangible, the statutes do not dictate how juries calculate this type of damages. As such, it really is impossible to know how much money a jury will award. The jury may take into consideration the strength, or lack thereof, of the relationship between the decedent and the survivor (in this case, the spouse) to determine how much mental pain and suffering the survivor has endured. To convince jurors the decedent and the surviving spouse enjoyed a solid marriage, the plaintiff may call a grief expert to testify (if allowed by the court). A defense attorney could then call witnesses to attempt to demonstrate marital difficulty. Obviously a wife who was living separately from her husband may have difficulty convincing a jury that she is enduring great mental pain and suffering.

How Is Loss of Decedent’s Companionship and Protection Determined?

Like mental pain and suffering, companionship and protection are also intangible damages that are impossible to predict and have no exact statutory guideline for calculation. It is up to the party to tell their story to the jury as effectively as possible so the jury can assign a monetary value to the lost companionship and protection.

What Can A Blood Relative Recover?

Any other blood relatives and adoptive brothers and sisters when partly or wholly dependent on the decedent for support or services may recover for the value of those lost services or support. This can include adopted children, and would even include brothers, sisters, grandparents, grandchildren and any other blood relatives if they were wholly or partly dependent on the deceased person for support or services.