Someone Told Us We Can't Sue After Our Relative Died in a Crash, Is That True?

Someone told your family you cannot sue after your relative died in a car crash. That is often wrong. Florida’s Wrongful Death Act allows a wide circle of family members to recover compensation through a single lawsuit filed by the estate’s personal representative, not just a spouse. Five specific myths cause families in Hialeah and across Miami-Dade to walk away from valid claims. This article dismantles each one using the actual statutes.

Myth 1: Only a Spouse Can Bring This Case, What Does Florida Law Actually Say?

Florida law does not limit wrongful death claims to spouses. Under Fla. Stat. § 768.20, only the personal representative of the deceased’s estate may file the lawsuit. But that person sues on behalf of all eligible survivors defined in Fla. Stat. § 768.18, not just themselves. Survivors include the spouse, children (including those born out of wedlock), parents, and blood relatives or adoptive siblings who were partly or wholly dependent on the deceased for support or services. If there is no will, a Miami-Dade probate court appoints the personal representative.

This rule prevents multiple lawsuits over the same death; it does not restrict who benefits. Unmarried domestic partners, stepchildren who were never adopted, and friends are generally not survivors under this statute, and other blood relatives, such as grandparents or cousins, qualify only if they were partly or wholly dependent on the deceased for support or services. The so-called “Free Kill” restriction in Fla. Stat. § 768.21(8) applies to medical malpractice deaths, not car crashes, but which survivors can recover which damages, such as an adult child or the parent of an adult, depends on the family situation under Fla. Stat. § 768.21, so a lawyer should review it.

Myth 2: The Criminal Case Will Get Us Compensated, Won’t the Prosecutor Handle This?

A criminal case and a civil wrongful death lawsuit serve different purposes. The state prosecutes the at-fault driver to determine guilt beyond a reasonable doubt. Your family’s financial recovery comes only from a civil case, which uses a lower standard: preponderance of the evidence. Even when a court orders restitution in a criminal case, that process is not designed to, and in practice rarely does, replace the full range of compensation available through a civil wrongful death lawsuit.

That compensation can include lost support, lost companionship, mental pain and suffering, and other damages specific to each survivor. A “not guilty” verdict or a plea deal in the criminal case does not stop your civil claim. And if the driver is never charged at all, you can still pursue a wrongful death case. Insurance settlement offers may not reflect the full value of a family’s losses, especially when multiple dependents are left behind.

Myth 3: Our Relative Was Partly at Fault in the Crash, Does That End Everything?

Not necessarily. Under Fla. Stat. § 768.81(6), Florida uses modified comparative negligence in wrongful death cases. If the deceased is found to be more than 50 percent at fault, the claim is barred. But if fault is 50 percent or less, the family can still recover, with damages reduced by the deceased’s share of fault. For example, if a crash at an intersection near Okeechobee Road shows the deceased ran a red light but the other driver was speeding, a jury might assign 40 percent fault to the deceased. The family’s recovery would be reduced by 40 percent, not eliminated.

Because the deceased cannot tell their side of the story, adjusters and defense lawyers may try to shift blame onto the victim early, which can lead to lower offers. That is why an independent investigation, gathering vehicle data, witness statements, and scene photos, must start immediately.

Myth 4: We Have to Wait for the Police Report Before We Can Do Anything, Is That True?

No. Under Fla. Stat. § 316.066, crash reports filed with Hialeah Police, Miami-Dade Police, or Florida Highway Patrol are confidential for 60 days. But the parties involved, their insurers, and their attorneys can access the report right away. You do not need to wait for public release to begin building your case.

More importantly, the police report is just one piece of evidence. It may list a preliminary opinion about fault, but that determination is not final and can be challenged with better evidence. Dashcam footage, nearby traffic cameras, skid marks, and witness accounts degrade or disappear quickly. Adjusters may call soon after the crash; do not give a recorded statement before speaking with a lawyer. The report helps, but it should not delay your next steps.

Myth 5: The At-Fault Driver’s Policy Limit Is All There Is, What Else Can We Look For?

In Miami-Dade, many at-fault drivers carry no bodily-injury liability coverage because Florida does not require it. When that happens, your family’s best option may be uninsured/underinsured motorist (UM) coverage under Fla. Stat. § 627.727. UM coverage is automatically included in most auto policies unless the policyholder rejected it in writing. That means the deceased’s household policy, or a relative’s policy if they lived together, could provide critical compensation.

Other potential sources include the at-fault driver’s employer if they were working, the owner of the vehicle if different from the driver, or a commercial insurance policy if a truck or rideshare vehicle was involved. Multiple policies can apply to one crash. UM coverage exists precisely for situations like yours, where the responsible party has little or no insurance. Many families don’t know they have it until they check their own policies.

What Should Our Family Actually Do Right Now?

First, do not give a recorded statement to any insurance adjuster. That adjuster works for the company, not your family. Second, preserve everything: photos of the vehicles, the crash scene, any dashcam or surveillance video, and contact info for witnesses. Third, know that Florida’s statute of limitations generally gives you two years from the date of death to file suit under Fla. Stat. § 95.11, but you must first open a probate estate and appoint a personal representative under Fla. Stat. § 768.20. Fourth, consult a wrongful death attorney in Hialeah or Miami-Dade before accepting any offer. Fifth, check all household auto policies for UM coverage, it may be your strongest asset. Sixth, remember that the first call from an adjuster is not the time to settle. Every week that passes weakens your evidence and narrows your options.

Frequently asked questions

Who actually files the wrongful death lawsuit, can I file it myself as the victim’s sibling?
No. Only the personal representative of the deceased’s estate can file the lawsuit under Florida law. If there is no will, a Miami-Dade probate court will appoint someone, often a close family member. You cannot file individually, even as a sibling.

The at-fault driver was arrested. Does that mean the criminal case will pay us?
No. Criminal cases focus on punishment, not family compensation. Restitution, if ordered, is limited and does not cover full damages like lost income or emotional loss. You still need a civil wrongful death claim to pursue complete recovery.

The police haven’t released the crash report yet. Can we still start a case?
Yes. Your attorney can obtain the report immediately, even during the 60-day confidentiality period. More importantly, you can begin collecting other evidence right away, waiting for the report is unnecessary and risky.

The driver who hit our relative had no insurance. Does that mean there’s nothing we can do?
No. Check for uninsured motorist (UM) coverage on any household auto policy. If a policy includes UM coverage, it may apply when the at-fault driver has no bodily-injury insurance, and it can be an important source of compensation.

Our relative was speeding when the crash happened. Is the case automatically lost?
Not if the deceased was 50 percent or less at fault. Florida allows partial recovery in those cases. Speeding alone does not equal total fault, other factors like road conditions, lighting, or the other driver’s actions matter too.

Hurt in an accident in Hialeah? Call Wolfson & Leon at 305-965-3766 for a free consultation. We speak Spanish, and there is no fee unless we win.