Wrongful Death

Wrongful Death After a Fatal Property Incident: Who Can Bring the Claim

By Rafael Recalde, Esq. • Recalde Law Firm, P.A. • October 9, 2026

When a fall, drowning, assault, or other incident on someone else's property causes a death, Florida's Wrongful Death Act, sections 768.16 through 768.26, Florida Statutes, controls who can bring the claim, who can recover, and what can be recovered. The rules are specific, and they differ from an ordinary injury claim.

When a Wrongful Death Claim Exists

Section 768.19 provides a right of action "when the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person ... and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued." In other words, if the person could have brought a premises liability claim had they survived, the claim generally continues as a wrongful death claim.

Who Files: The Personal Representative

Under section 768.20, the action "shall be brought by the decedent's personal representative, who shall recover for the benefit of the decedent's survivors and estate." Family members do not each file separate lawsuits. The personal representative is appointed through the probate court, and section 768.21 requires that all potential beneficiaries "be identified in the complaint." Section 768.20 also provides that when a personal injury results in death, the personal injury action does not survive.

Who Counts as a "Survivor"

Section 768.18(1) defines survivors as "the decedent's spouse, children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters." For wrongful death purposes, "minor children" means children under 25 years of age (section 768.18(2)).

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What Can Be Recovered (Section 768.21)

Each survivor: the value of lost support and services.
Surviving spouse: loss of companionship and protection, and mental pain and suffering.
Minor children (and all children if there is no surviving spouse): lost parental companionship, instruction, and guidance, and mental pain and suffering.
Parents of a deceased minor child: mental pain and suffering. Parents of an adult child may recover for mental pain and suffering if there are no other survivors.
Survivors who paid them: medical or funeral expenses.
The estate: certain lost earnings from injury to death, in some cases lost prospective net accumulations, and medical or funeral expenses charged against the estate.

Section 768.20 also allows a defense that would bar or reduce a particular survivor's recovery to be raised against that survivor, without affecting the others.

Deadlines

A wrongful death action must generally be commenced within two years under section 95.11(5)(e), Florida Statutes. That period did not change in 2023. If the death happened on government property, section 768.28(6)(a) requires a written claim to the Department of Financial Services within 2 years, and the agency has 90 days to act before the claim is deemed denied. See notice-of-claim rules for government property and Florida's premises injury deadlines.

Steps Families Can Take Now

Request the police or incident report and the death certificate.
Write down the names of witnesses and anyone at the property who responded.
Photograph the location if it is safe and lawful to do so, before conditions change.
Keep medical, funeral, and employment records.

Our wrongful death premises liability overview discusses common property-related causes of death.

How Your Case Is Referred

Your case will be referred to another lawyer. Recalde Law Firm, P.A. does not litigate premises injury cases. Rafael Recalde reviews what happened and, if the matter appears to have merit, refers it to another Florida lawyer or law firm that handles premises liability cases.

You will know which firm will handle your case before you sign anything. Under Rule 4-1.5 of the Rules Regulating The Florida Bar, a fee can be divided between firms only with your written consent, in a written contract signed by you and by each participating firm, and each firm accepts joint legal responsibility for your representation. You are always free to choose a different lawyer.

Frequently Asked Questions

Q: Who can file a wrongful death lawsuit in Florida?

Under section 768.20, Florida Statutes, the action is brought by the decedent's personal representative, for the benefit of the survivors and the estate.

Q: Who are survivors under Florida's Wrongful Death Act?

Section 768.18(1) defines survivors as the decedent's spouse, children, and parents, plus dependent blood relatives and adoptive brothers and sisters.

Q: What is the deadline for a Florida wrongful death claim?

Generally two years under section 95.11(5)(e), Florida Statutes. Claims involving government property also require a written claim to the Department of Financial Services within 2 years under section 768.28(6)(a).

Q: Can parents recover for the death of an adult child in Florida?

Under section 768.21(4), each parent of an adult child may recover for mental pain and suffering if there are no other survivors. Section 768.21(8) limits this for medical negligence claims.

Sources

This article explains general Florida law as of October 9, 2026. It is not legal advice about your situation.