Our Family Member Died in a Crash: Can We Sue in Florida?
Yes. When someone dies because of another party's negligence or wrongful act in Florida, surviving family members can pursue a wrongful death claim under the Florida Wrongful Death Act, provided the deceased would have had a valid personal injury claim had they survived. One lawsuit is filed by the personal representative of the estate, not by individual family members, and it must generally be filed within two years of the date of death. The claim can recover lost financial support, funeral costs, lost companionship, and mental pain and suffering for eligible survivors.
Yes. When someone dies because of another party’s negligence or wrongful act in Florida, surviving family members can pursue a wrongful death claim under the Florida Wrongful Death Act, provided the deceased would have had a valid personal injury claim had they survived. One lawsuit is filed by the personal representative of the estate, not by individual family members, and it must generally be filed within two years of the date of death. The claim can recover lost financial support, funeral costs, lost companionship, and mental pain and suffering for eligible survivors.
Can we actually sue, what does Florida law say?
Florida law allows a wrongful death lawsuit when death results from another party’s “wrongful act, negligence, default, or breach of contract or warranty” (Fla. Stat. §§ 768.16, 768.26). The key test is whether the deceased person could have sued for personal injuries if they had lived. If so, that claim is replaced by a wrongful death action brought on behalf of certain survivors. This law applies to fatal crashes anywhere in Miami-Dade County, including collisions on Okeechobee Road, the Palmetto Expressway (SR 826), or local streets like W 49th St in Hialeah. These incidents are typically investigated by the Hialeah Police Department, Miami-Dade Police, or the Florida Highway Patrol (FHP), depending on location.
Who actually files the lawsuit, and who gets the money?
Only the personal representative of the deceased’s estate may file the lawsuit (Fla. Stat. § 768.20). If the deceased left a will, it usually names this person. If not, the probate court appoints one, often a spouse or adult child. The lawsuit benefits eligible survivors defined by law (Fla. Stat. § 768.18): the surviving spouse; children, including adopted children; parents; and blood relatives or adoptive siblings who were partly or wholly dependent on the deceased for support or services. Florida defines “minor children” as under age 25 for certain damages. Unmarried partners and unadopted stepchildren generally do not qualify, and other relatives such as cousins or grandparents qualify only if they were partly or wholly dependent on the deceased for support or services.
What can the family actually recover?
Recovery falls into two categories under Fla. Stat. § 768.21. First, survivor damages include lost support and services, lost companionship and protection (for a spouse), lost parental guidance (for children), and mental pain and suffering. A surviving spouse receives all these. Minor children (under 25) receive parental companionship and mental pain and suffering; adult children receive them only if there is no surviving spouse. Parents may recover mental pain and suffering if their child was a minor, or if their adult child died with no other survivors. Second, the estate may recover the deceased’s lost earnings from injury to death, lost net accumulations (future savings), and medical and funeral expenses paid by the estate. Survivor damages go directly to family members and are not subject to estate creditors; estate damages are.
What is the deadline to file, and what happens if a government vehicle or doctor was involved?
Most wrongful death claims must be filed within two years of the date of death (Fla. Stat. § 95.11), not the crash date. Two exceptions complicate this. First, if a government entity caused the death, such as a Miami-Dade County vehicle or a dangerous condition on a state road, you must give written notice to the agency before suing under Fla. Stat. § 768.28, which adds steps that take time. Second, if death resulted from medical negligence, Fla. Stat. § 768.21(8) has a special rule, sometimes called the “free kill” provision, about noneconomic damages (like pain and suffering) for adult children and parents of adult children. That law has been changing, so a lawyer must check current law. Different time rules may also apply when a death resulted from an intentional crime, so ask a lawyer about your situation. Evidence fades quickly, so acting early is critical.
What if our family member was partly at fault for the crash?
Florida uses a modified comparative negligence rule (Fla. Stat. § 768.81). The family’s recovery is reduced by the deceased’s percentage of fault, but the claim is barred only if the deceased was more than 50 percent at fault. Insurers and defense lawyers often argue the deceased contributed to the crash, especially in intersection collisions or nighttime accidents, to avoid paying. A prompt investigation helps preserve evidence like vehicle black box data, traffic camera footage, and witness statements. Note: the more-than-50-percent bar does not apply in medical malpractice wrongful death cases, and other special damages rules may apply there, so a lawyer must check current law.
What is the first step our family should take right now?
Get the official crash report. Depending on where the crash occurred, Okeechobee Road, the Palmetto Expressway, or W 49th St in Hialeah, it may have been prepared by Hialeah Police, Miami-Dade Police, or FHP. Under Fla. Stat. § 316.066, these reports are confidential for 60 days except to the parties, their insurers, and their attorneys. That means you can get it now if you have legal help. Wolfson & Leon meets families at home, handles cases in Spanish, and can explain how probate fits into the legal process. Remember: the two-year clock runs from the date of death, but probate itself takes time before a lawsuit can even begin.
Frequently asked questions
My father died this morning after being hit by a car, what do I do right now?
Contact a wrongful death lawyer immediately. Do not give a recorded statement to any insurance company. Preserve any evidence, photos, witness names, clothing. A lawyer can request the crash report right away and begin probate to appoint a personal representative.
Can the family sue the at-fault driver’s insurance company directly?
No. The lawsuit is filed against the at-fault party, not their insurer. However, the insurer typically defends and pays any settlement or judgment up to policy limits. Your attorney deals with the insurance company throughout the process.
The other driver had no insurance, does that mean there is nothing to recover?
Not necessarily. If your family member had uninsured motorist (UM) coverage, that policy may pay. UM coverage is optional in Florida but must be rejected in writing. We can check available policies and explore all sources of compensation.
Does the ‘free kill’ law in Florida mean we cannot sue because our parent died from a medical error?
You can still sue, but Fla. Stat. § 768.21(8) may limit noneconomic damages like pain and suffering for adult children or parents of adult children in medical negligence deaths. Economic damages, such as lost income and medical bills, are still recoverable. Laws change, so consult a lawyer for current rules.
Can the family of the person in the car that was struck also sue the at-fault driver, even if their loved one was a passenger?
Yes. Fault lies with the driver who caused the crash, not the passenger. If the at-fault driver ran a red light, crossed the center line, or violated traffic laws, their negligence likely caused the death. The passenger’s family can pursue a wrongful death claim just as if their loved one had been driving.
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.
Key facts
- Only the personal representative of the deceased person's estate may file a wrongful death lawsuit in Florida, not individual family members on their own. Source: Fla. Stat. § 768.20
- Eligible survivors who may benefit from the lawsuit include the surviving spouse, children (including adopted children), parents, and blood relatives or adoptive siblings who were partly or wholly dependent on the deceased for support or services. Source: Fla. Stat. § 768.18
- Most Florida wrongful death claims must be filed within two years of the date of death, not the date of the accident. Source: Fla. Stat. § 95.11
- If the deceased was more than 50 percent at fault for the incident that caused their death, the wrongful death claim is barred entirely under Florida's modified comparative negligence rule. Source: Fla. Stat. § 768.81
- Crash reports filed with law enforcement in Florida are confidential for 60 days after the crash, except to the parties involved, their insurers, and their attorneys. Source: Fla. Stat. § 316.066
Frequently asked questions
My father died this morning after being hit by a car, what do I do right now?
First, request the crash report from the agency that responded, in Hialeah that may be Hialeah Police, Miami-Dade Police, or FHP. Under Fla. Stat. § 316.066, the report is confidential for 60 days, but the parties involved, their insurers, and their attorneys can obtain it during that window. Contact a wrongful death attorney as soon as possible: Florida's two-year filing deadline under Fla. Stat. § 95.11 starts running from the date of death, and the probate court must appoint a personal representative before a lawsuit can even be filed, which takes additional time.
Can the family sue the at-fault driver's insurance company directly?
In Florida, the lawsuit is typically filed against the at-fault party, the driver, their employer, or another negligent party, not the insurance company as a named defendant. The at-fault driver's liability insurer then defends the case and pays any judgment or settlement up to the policy limits. If the at-fault driver had no insurance or too little coverage, your family may have a claim under the deceased's own uninsured/underinsured motorist (UM) policy under Fla. Stat. § 627.727. An attorney can identify all available insurance sources.
The other driver had no insurance, does that mean there is nothing to recover?
Not necessarily. Possible sources of recovery include the at-fault driver's personal assets, uninsured motorist (UM) coverage on the deceased person's own auto policy under Fla. Stat. § 627.727, or UM coverage on a household relative's policy. Other parties, such as an employer if the driver was working, or, in limited situations, a business that served the driver alcohol, may also bear liability. An attorney can investigate all potential sources before concluding there is no recovery.
Does the 'free kill' law in Florida mean we cannot sue because our parent died from a medical error?
No. You can still bring a claim. The 'free kill' provision, Fla. Stat. § 768.21(8), is a special rule about noneconomic damages, such as pain and suffering and lost companionship, for adult children and parents of adult children that applies only when the death was caused by medical malpractice, not by car crashes or other negligence. It does not affect wrongful death claims from accidents. Because this law has been changing, a lawyer must check current law to see which family members can recover in a medical negligence death.
Can the family of the person in the car that was struck also sue the at-fault driver, even if their loved one was a passenger?
Yes. A passenger who died in a crash they did not cause has no fault attributed to them for the collision itself, and the personal representative of their estate can file a wrongful death claim against the at-fault driver under Florida's Wrongful Death Act. Eligible survivors, spouse, children, parents, can seek the full range of damages under Fla. Stat. § 768.21. The same two-year deadline under Fla. Stat. § 95.11 applies.
This article is general information about Florida law, not legal advice, and reading it does not create an attorney-client relationship. Every case is different and past results do not guarantee a similar outcome. For advice about your situation, call Wolfson & Leon at 305-965-3766 for a free consultation.
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