Who Files the Wrongful Death Claim When a Family Member Dies in Florida?

In Florida, only one person can file a wrongful death lawsuit: the personal representative of the deceased’s estate. This individual files a single case for all eligible survivors, spouses, children, parents, and certain dependent relatives, and cannot keep the recovery for themselves. The law requires this structure so that no survivor is accidentally left out and to prevent multiple lawsuits over the same death. If a family member tries to sue on their own, the court can dismiss the case.

Why can’t each family member file their own lawsuit?

Florida law allows only the personal representative to bring a wrongful death claim. Under Fla. Stat. § 768.20, the action “shall be brought by the decedent’s personal representative” and any recovery goes to the survivors and the estate, not to the representative personally. This rule exists to avoid conflicting lawsuits, inconsistent verdicts, and missed claims. It also means that even if you have a strained relationship with other relatives, the person who files the case must include every eligible survivor in the complaint. The representative owes a fiduciary duty to all of them, not just to those they favor. A defense that applies to one survivor does not block another’s recovery, which shows how the law separates each person’s right to compensation.

Who can serve as personal representative, and who decides?

The personal representative is either named in the deceased’s valid will or appointed by the probate court if there is no will. If there is no will, Florida law sets a priority order for who may serve, but the exact details depend on current probate statutes and whether the candidate lives in Florida. Generally, the surviving spouse has priority, and after that the law looks to the heirs, such as adult children, and then to other relatives. In Hialeah, where blended families and multigenerational households are common, disagreements over who should serve frequently arise. The appointee must be legally competent and willing to act. Non-residents face additional restrictions under Florida probate law, so it is critical to consult an attorney before assuming someone qualifies.

How does a Miami-Dade court actually appoint the personal representative?

Before any wrongful death lawsuit can be filed, a probate case must be opened in the probate court within the Eleventh Judicial Circuit in Miami-Dade County. The court formally appoints the personal representative and issues “letters of administration,” which prove their legal authority to act on behalf of the estate. Without these letters, a wrongful death complaint generally cannot move forward. Families should not delay opening probate, the two-year deadline under [Fla. Stat. § 95.11] generally starts on the date of death and does not pause while relatives argue or wait. Because court procedures can change, always verify the current division name and filing requirements directly with the court or a qualified attorney.

What can the personal representative decide, and what requires court approval?

The personal representative can hire attorneys, collect medical records, negotiate with insurance companies, and sign settlement agreements on behalf of the estate. But they cannot distribute money however they wish, exclude eligible survivors, or pocket the recovery for themselves. Under Fla. Stat. § 768.20, the money belongs to the survivors and the estate. The complaint must list every potential beneficiary and their relationship to the deceased per Fla. Stat. § 768.21. If a settlement includes a minor or incapacitated person, the court generally must approve it under [Fla. Stat. § 744.387]. For example, a surviving spouse may recover for loss of companionship and mental pain, while minor children (under 25 for this purpose) may recover for lost parental guidance, but all must be accounted for in the claim.

What if the family cannot agree on who should serve?

Disagreements over who should serve as personal representative are common in Miami-Dade, especially in Hialeah households where step-relatives, half-siblings, or adult children from different relationships all believe they have a rightful claim. When this happens, the probate court in the Eleventh Judicial Circuit must resolve the dispute. Until someone is formally appointed, no wrongful death lawsuit can move forward, even though the two-year clock keeps running under [Fla. Stat. § 95.11]. Each family member with a potential interest should consider speaking with their own lawyer, because the person seeking to be appointed may not represent everyone’s interests equally.

Who are the survivors the personal representative is legally obligated to protect?

Florida defines “survivors” narrowly in Fla. Stat. § 768.18: the surviving spouse, children (including adopted children), parents, and certain blood relatives or adoptive siblings who depended on the deceased for support or services. Each category has specific damages available under Fla. Stat. § 768.21. For instance, the estate may recover for lost earnings and medical expenses, while the surviving spouse may recover for loss of companionship, protection, and mental pain and suffering. Minor children (under 25 for this purpose) may recover for lost parental companionship and instruction. The personal representative must identify every eligible survivor in the complaint, omitting someone breaches their legal duty. They do not benefit from the role unless they are also a qualifying survivor themselves.

Frequently asked questions

My brother was killed by a driver last week. Does my sister-in-law control everything and can she cut me out?
No. If your sister-in-law is appointed personal representative, she must include all eligible survivors in the lawsuit, which can include his children, his parents and, if they were partly or wholly dependent on him, his siblings. She cannot exclude you if you qualify under the law. Her duty is to act for everyone, not just herself.

Does the personal representative keep the settlement money?
No. The recovery belongs to the estate and the statutory survivors, not the representative. They only manage the process. If they are also a survivor (like a spouse or child), they may receive a share, but only as a survivor, not because of their role.

What happens if the person named in the will cannot serve or refuses to serve?
The probate court will appoint someone else based on Florida’s priority order. The next eligible person, often a surviving spouse or adult child, may be asked to serve. The court handles replacements formally through probate proceedings.

Can we file the wrongful death lawsuit first and open probate later?
Generally, no. You should open probate first and get letters of administration before filing the wrongful death claim. Without them, the lawsuit can be challenged or dismissed. Start probate as soon as possible, it is the required first step.

Does a settlement involving my minor grandchild need special approval?
Yes. Under Fla. Stat. § 744.387, a settlement for a minor or incapacitated person generally must be reviewed and approved by the court to ensure it is fair and in their best interest.

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