First, there are damages that the estate may recover via the personal representative of the decedent’s estate. The personal representative is the person authorized to file a lawsuit in a wrongful death action and is usually named in the decedent’s will.
If the decedent did not have a will, usually the surviving spouse will be appointed by the court to serve as personal representative. If there is no surviving spouse or the surviving spouse declines to serve, the person (or institution) selected by a majority of the decedent’s heirs will be appointed as the personal representative. If the heirs cannot agree on a personal representative, the court will so decide.
The estate consists of what the decedent left to beneficiaries via his/her will. If there is no will, the estate consists of relatives defined by the intestacy statute.
Florida Law for Wrongful Death
Secondly, Florida’s Wrongful Death Act allows for survivors to recover damages. Who are survivors? As defined by the Florida Wrongful Death Statute, survivors include:
- The surviving spouse
- Minor children (children under the age of 25, notwithstanding the age of majority, which includes child born out of wedlock of a mother, but not the child born out of wedlock of the father, unless the father has recognized a responsibility for supporting the child)
- Adult children (if there is no surviving spouse)
- Parents of a minor child
- Parents of an adult child when there are no other survivors
- Any blood relatives and adoptive brothers and sisters (when partly or wholly dependent on the decedent for support or services)
In a wrongful death action, all potential beneficiaries of a recovery (including the estate) must be identified in the complaint. Their relationships to the decedent must also be alleged.
The pages in this section will further discuss both categories of recipients and exactly what each may recover. Whenever “the statute” is referenced on any of these pages, it is referring to Florida Statute sec. 768.21, the damages provision of Florida’s Wrongful Death Act.