My family member was killed in an accident in Hialeah. Who can bring a claim?
In Florida, a wrongful death claim is brought by the personal representative of the deceased person's estate on behalf of the surviving family members (Fla. Stat. § 768.20). The family members who can recover, called "survivors," are the spouse, children, parents, and any blood relative or adoptive sibling who depended on the deceased for support (Fla. Stat. § 768.18). The lawsuit must generally be filed within two years of the death (Fla. Stat. § 95.11).
Wolfson & Leon has represented families in wrongful death cases in Miami-Dade County since 1963. The consultation is free, in English or Spanish, and there is no fee unless the firm recovers money for the family.
What is a "personal representative," and do we need one?
Yes. Florida's Wrongful Death Act requires the claim to be filed by the personal representative of the estate, who acts for all the survivors at once (Fla. Stat. § 768.20). If the deceased had a will, it usually names one; if not, a family member, often the spouse or an adult child, is appointed by the probate court in Miami-Dade. Wolfson & Leon helps the family open the estate and get a personal representative appointed as part of the case, and any recovery is divided among the survivors as the court approves.
What can the family recover in a Florida wrongful death case?
Under Fla. Stat. § 768.21, each survivor may recover the value of lost support and services from the date of injury, with interest, and future losses. A surviving spouse may also recover for loss of companionship and protection and for mental pain and suffering. Minor children, and all children if there is no surviving spouse, may recover for lost parental companionship, instruction, and guidance and for mental pain and suffering. Parents of a deceased minor child may recover for mental pain and suffering; parents of an adult child may recover it when there are no other survivors. Medical and funeral expenses paid by a survivor are recoverable. The estate itself may recover lost earnings and, in some cases, the value of what the deceased would have saved over a normal life ("net accumulations").
What kinds of accidents lead to wrongful death claims in Miami-Dade?
Car, truck, and motorcycle crashes on the Palmetto Expressway, Okeechobee Road, and W 49th St; pedestrians struck on Hialeah's wide arterials; falls at apartment complexes and construction sites; drownings in pools without proper barriers; medical negligence in hospitals and nursing homes; and defective products. The underlying negligence has to be proven the same way as in an injury case; the Wrongful Death Act determines who recovers and what.
How long does the family have to file?
Two years from the date of death (Fla. Stat. § 95.11). If the death was caused by medical negligence, the presuit requirements of Chapter 766 also apply, and Fla. Stat. § 768.21(8) limits which survivors can recover pain-and-suffering damages. If a government agency is involved, written pre-suit notice under Fla. Stat. § 768.28(6) is required. In every case, evidence is best gathered early, and the estate has to be opened before suit, so families should call as soon as they are able.
What compensation can the family recover in a wrongful death case?
Under Florida's Wrongful Death Act, each survivor may recover the value of lost support and services, and, depending on the relationship, loss of companionship, protection, parental guidance, and mental pain and suffering; medical and funeral expenses paid by a survivor are recoverable, and the estate may recover lost earnings and net accumulations (Fla. Stat. § 768.21). Special limits apply when the death was caused by medical negligence (Fla. Stat. § 768.21(8)) or by a government agency (Fla. Stat. § 768.28). The division among survivors is proposed by the personal representative and approved by the court. Wolfson & Leon explains, on the first call, which survivors the law recognizes in your family and what each may recover.
What mistakes hurt a wrongful death claim?
- Settling with an insurer before the estate is opened and all survivors identified; the settlement may not be valid, and it is almost always low.
- Letting the vehicle, the scene, or the medical records go without preserving them; the deceased cannot testify, so the physical evidence carries the case.
- Assuming an unmarried partner or an adult child can recover in every case. The Act defines survivors specifically; ask rather than assume.
- Waiting. Two years from the date of death sounds long, but the estate must be opened and, in medical cases, presuit completed before suit can be filed.
- Speaking to the at-fault party's insurer while grieving and unrepresented.
Key facts
- The claim is brought by the personal representative of the estate for the benefit of the survivors and the estate. Source: Fla. Stat. § 768.20
- Survivors include the spouse, children, parents, and dependent blood relatives or adoptive siblings. Source: Fla. Stat. § 768.18
- Damages include lost support and services, companionship, mental pain and suffering, and medical and funeral expenses. Source: Fla. Stat. § 768.21
- Two years from the date of death to file a wrongful death lawsuit. Source: Fla. Stat. § 95.11
- Special limits apply when the death was caused by medical negligence. Source: Fla. Stat. § 768.21(8)
Frequently asked questions
We were not married but lived together for years. Can I bring a claim?
Florida's Wrongful Death Act does not treat an unmarried partner as a "survivor" for their own damages. Children of the relationship are survivors, and a partner who is appointed personal representative can bring the claim for them. Wolfson & Leon explains honestly what the law allows in your situation.
The insurance company wants to settle quickly with the family. Should we?
Not before the estate is opened, all survivors are identified, and the full value of the claim is understood. A wrongful death settlement usually requires court approval to protect every survivor, especially minor children. Quick offers are almost always low.
What if my family member was partly at fault?
The recovery is reduced by their share of fault, and barred if they were more than 50% at fault (Fla. Stat. § 768.81). Fault is often disputed and is not settled by the police report.
How is the money divided among family members?
The personal representative proposes a division and the court approves it. Each survivor's share depends on their relationship and losses under Fla. Stat. § 768.21. Wolfson & Leon walks the family through it and answers everyone's questions.
What happens when you call
A person answers, not a recording
Call (305) 285-7071 any time. A person from the firm picks up, in Spanish if you prefer. If it is the middle of the night, we take your details and an attorney calls first thing.
We ask what happened, about 15 minutes
When and where it was, whether you were treated, whether there is a police report, and whether an insurer has already called you. You do not need papers in front of you.
We tell you honestly whether we can help
If you have a case we can take, we explain the next steps and what not to do in the meantime. If you do not, we tell you that too, and who else to call.
If you hire us, you pay nothing up front
The fee is a percentage of what is recovered, explained in writing before you sign. If we recover nothing, you owe no fee. We can come to your home or the hospital if you cannot get to the office.
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