What Damages Can a Family Recover in a Florida Wrongful Death Case? Who Files, What Each Survivor Gets, and the Medical-Malpractice Exception That Still Bars Some Families

By the trial attorneys at Silva & Silva

In a Florida wrongful death case, what damages a family can recover is fixed by Fla. Stat. § 768.21 and split by relationship — lost support and services, a spouse’s companionship and mental pain, a minor child’s lost parental guidance, and the estate’s own losses. Only the personal representative may file (§ 768.20). Silva & Silva tries these cases in Miami.

Almost nothing about Florida wrongful death law works the way a grieving family expects. You cannot simply hire a lawyer and sue in your own name. Inside the Wrongful Death Act, the phrase minor children does not track the age of majority — it reaches children under 25. And in one category of case — the one where a hospital or a physician caused the death — an entire class of survivors is barred by statute from recovering anything for their grief.

Those are not opinions or edge cases. They are the plain text of the Florida Wrongful Death Act, Fla. Stat. §§ 768.16–768.26, and of the limitations statute that sits alongside it. This article walks through that text section by section, current as of September 2026. Every statute quoted below was re-read against the official 2026 Florida Statutes at flsenate.gov on September 10, 2026, and every bill status was pulled from the Legislature’s own bill histories rather than from news coverage — which matters enormously for the last section of this article, where the reporting and the law do not say the same thing.

Only the Personal Representative Can File a Florida Wrongful Death Case — and the Two-Year Clock Runs From the Date of Death

Start with the single most common wrong answer on the internet: the family sues. In Florida, the family does not sue. The estate’s personal representative does — and that appointment comes from a probate judge, not from the family.

The statute names exactly one plaintiff

Section 768.20 is one paragraph long and it does all the work:

“The action shall be brought by the decedent’s personal representative, who shall recover for the benefit of the decedent’s survivors and estate all damages, as specified in this act, caused by the injury resulting in death.” (Fla. Stat. § 768.20, flsenate.gov)

One action, brought in one capacity. A widow cannot file her own case for her loss while an adult son files a separate one for his. The personal representative — the estate’s court-appointed fiduciary — brings a single consolidated lawsuit and holds the claims of every statutory survivor and the estate inside it. (Florida does allow two or more people to serve together as joint personal representatives; Fla. Stat. § 733.615 sets out when their concurrence is required. What the Act forecloses is survivors suing in their own names.)

That has a practical consequence families rarely anticipate: a probate estate normally has to be opened before the wrongful death suit is filed. The probate court issues letters of administration, and those letters are what give the personal representative authority to sue.

Florida does soften the edges of that sequence. Under Fla. Stat. § 733.601, “the duties and powers of a personal representative commence upon appointment,” but “the powers of a personal representative relate back in time to give acts by the person appointed, occurring before appointment and beneficial to the estate, the same effect as those occurring after appointment” (flsenate.gov). That relation-back principle is a repair mechanism, not a plan. Treat the probate appointment as a prerequisite and get it done early; do not build a case around the hope that a court will later validate a filing made before anyone had authority to make it.

The choice is not left to whoever speaks up first. Fla. Stat. § 733.301 sets an order of preference the probate court follows. If there is a will, the personal representative it nominates comes first, then “[t]he person selected by a majority in interest of the persons entitled to the estate,” then a devisee. If there is no will, the surviving spouse has first preference, then “[t]he person selected by a majority in interest of the heirs,” then the heir nearest in degree. So the family’s own agreement does carry weight — but as a statutory preference slot, not as a vote that overrides the slots above it. When people of equal preference compete, the statute lets the judge “select the one best qualified.” (Fla. Stat. § 733.301, flsenate.gov.)

The decedent’s own pain-and-suffering claim does not survive

Florida’s general survival statute says that “no cause of action dies with the person” (Fla. Stat. § 46.021, flsenate.gov). But the Wrongful Death Act overrides it for the injury that caused the death. The second sentence of § 768.20 reads:

“When a personal injury to the decedent results in death, no action for the personal injury shall survive, and any such action pending at the time of death shall abate.”

Read that carefully, because it is far more consequential than it looks. If your loved one was injured, filed a personal injury lawsuit, and then died of that injury, the pending case abates — it does not continue, and it does not convert itself. It has to be replaced by a wrongful death action brought by the personal representative. And the decedent’s own conscious pain and suffering before death is not a recoverable category in that new case. The Act’s damages are the survivors’ losses and the estate’s losses, not the decedent’s.

Two years — from the death, not from the crash

The deadline lives in the limitations statute, not the Wrongful Death Act:

• Fla. Stat. § 95.11(5)(e) — “An action for wrongful death” — two years. (flsenate.gov)
• The clock runs from the date of death, not the date of the collision, the fall, or the surgery. When someone is injured in March and dies in November, the two years start in November.

Two traps sit on top of that.

The renumbering trap. CS/CS/HB 837, Chapter 2023-15, Laws of Florida — Florida’s 2023 tort-reform act, signed March 24, 2023 — did not shorten the wrongful death period. It was already two years. What HB 837 did was reorganize § 95.11, moving the wrongful death paragraph into the new “WITHIN TWO YEARS” subsection. Articles written before 2023 cite the old location, and a great many written since simply copied them. If a source cites a superseded paragraph number for the general wrongful death limitation, it is working from a stale copy of the statute. That is a different thing from the other paragraphs that still legitimately govern particular deaths — (5)(c) for deaths caused by medical malpractice and (11) for the specified intentional-tort deaths. Both are current law, and both are covered below.

The adjacent-paragraph trap. Do not confuse § 95.11(5)(e) with § 95.11(5)(a), “An action founded on negligence,” which is the general two-year negligence period HB 837 created by cutting the old four-year rule. That shorter negligence period is keyed to accrual, not to filing: chapter 2023-15, § 28, provides that “[t]he amendments made by this act to s. 95.11, Florida Statutes, apply to causes of action accruing after the effective date of this act,” and the act took effect on signing, March 24, 2023. A negligence claim that accrued before that date still carries the old four-year period. Same subsection, different paragraph, different claim — and, for negligence, a transition date that has to be checked before anyone assumes two years.

The exceptions that actually exist

• Death by murder or manslaughter: no deadline — against the person who did it. Section 95.11(11) is explicit — “Notwithstanding paragraph (5)(e), an action for wrongful death seeking damages authorized under s. 768.21 brought against a natural person for an intentional tort resulting in death from acts described in s. 782.04 or s. 782.07 may be commenced at any time.” The same subsection adds that it “shall not be construed to require an arrest, the filing of formal criminal charges, or a conviction” as a condition of filing the civil case. Read the words “against a natural person” carefully: this paragraph lifts the deadline for the claim against the individual who committed the intentional act. It does not open an unlimited window against everyone else connected to the death — a negligent-security claim against the property owner, for instance, is still an ordinary wrongful death action on the two-year clock.
• Medical negligence deaths run on Chapter 766 time — and on a different limitations paragraph. When the death was caused by medical care, § 95.11(5)(e) is not the end of the analysis. Paragraph (5)(c) governs “an action for medical malpractice,” which the statute defines as “a claim in tort or in contract for damages because of the death, injury, or monetary loss to any person arising out of any medical, dental, or surgical diagnosis, treatment, or care by any provider of health care.” That paragraph sets two years “from the time the incident giving rise to the action occurred or … from the time the incident is discovered, or should have been discovered with the exercise of due diligence,” subject to an outer four-year repose — “in no event shall the action be commenced later than 4 years from the date of the incident.” That four-year outer limit has two written exceptions of its own: it does not bar an action brought on behalf of a minor on or before the child’s eighth birthday, and where “fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury,” the period is extended two years from discovery, though generally not beyond seven years from the incident. In other words, a med-mal death does not automatically get a clean two years from the funeral. Which paragraph controls, and when the clock actually started, is a fact-specific question that has to be answered early — not after the fact.
• The Chapter 766 presuit machinery also moves the deadline. Before a medical-negligence suit can be filed, the personal representative must serve a notice of intent on each prospective defendant. Under § 766.106(3)(a), “a suit may not be filed for a period of 90 days after notice is delivered,” and under § 766.106(4) the statute of limitations is tolled during that 90-day window as to all prospective defendants (flsenate.gov). Separately, § 766.104(2) grants an automatic 90-day extension of the limitations period on petition to the clerk and payment of a filing fee — “no court order is required for the extension to be effective” (flsenate.gov).
• A surviving child’s age generally does not buy more time. Florida’s tolling rules are a closed list rather than an open-ended equity: § 95.051(2) provides that “[a] disability or other reason does not toll the running of any statute of limitations except those specified in this section, s. 95.091, the Florida Probate Code, or the Florida Guardianship Law.” Minority appears in § 95.051(1)(i), but only for the period during which no parent, guardian, or guardian ad litem exists, or the one who does exists has an adverse interest or is adjudicated incapable of suing (flsenate.gov). Because the wrongful death claim belongs to the estate and is prosecuted by the personal representative — not by the child individually — a minor survivor cannot wait until eighteen and file then.
• A slow probate appointment is not an excuse either. Nothing in § 95.11 pauses the two years while a family argues about who should serve. The probate track and the litigation track have to run at the same time.

Who Counts as a “Survivor” in Florida — and Why “Minor Child” Means Under 25

Damages under the Act are not paid to “the family.” They are paid to survivors, a defined term, and to the estate. If you are not on the list, you recover nothing no matter how close you were.

The definition, verbatim

“‘Survivors’ means 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. It includes the child born out of wedlock of a mother, but not the child born out of wedlock of the father unless the father has recognized a responsibility for the child’s support.” (Fla. Stat. § 768.18(1), flsenate.gov)

Note the asymmetry in that second sentence. A spouse, a child, or a parent is a survivor without having to prove anything about money — with one qualification written into the same sentence: a child born out of wedlock counts as the mother’s child automatically, but as the father’s child only “unless the father has recognized a responsibility for the child’s support.” A blood relative or an adoptive brother or sister, by contrast, is a survivor only on proof of actual dependency — partial or total — for support or services.

Read the dependency clause narrowly, because it is narrower than families assume: it reaches “any blood relatives and adoptive brothers and sisters,” and nothing else. Stepchildren are not named anywhere in § 768.18. Unless the decedent legally adopted a stepchild — in which case that stepchild is simply a child — a stepchild is neither the decedent’s child nor a blood relative, and dependency alone does not create standing under this statute. The same is true of an unmarried partner, however long the relationship. Florida wrote a list, and the list is the list.

The Act then defines the currency of the claim:

• “Support” includes contributions in kind as well as money. (§ 768.18(3).) Groceries, rent paid directly, a car note carried for a parent — support is not limited to a paycheck.
• “Services” means “tasks, usually of a household nature, regularly performed by the decedent that will be a necessary expense to the survivors of the decedent.” (§ 768.18(4).) The statute adds that these “may vary according to the identity of the decedent and survivor and shall be determined under the particular facts of each case.”
• “Net accumulations” is the part of the decedent’s expected net business or salary income, including pension benefits, that they “probably would have retained as savings and left as part of her or his estate” over a normal life expectancy. (§ 768.18(5).)

The under-25 rule almost nobody gets right

Here is the single most counterintuitive line in the Act:

“‘Minor children’ means children under 25 years of age, notwithstanding the age of majority.” (Fla. Stat. § 768.18(2))

Not eighteen. Twenty-five. The phrase “notwithstanding the age of majority” exists precisely to stop anyone from importing the ordinary definition. A 23-year-old who loses a parent is a minor child for every purpose in this statute; a 26-year-old is an adult child.

That one line decides who may recover for grief, and it is the hinge the medical-malpractice bar swings on. It also remains fully in force in September 2026 — § 768.18 has not been amended since 2003.

What Damages Can a Family Recover in a Florida Wrongful Death Case? Section 768.21, Survivor by Survivor

There is no single “wrongful death settlement” in Florida that gets divided up afterward. Section 768.21 creates a set of separate, individually owned claims, and it opens by requiring that “all potential beneficiaries of a recovery for wrongful death, including the decedent’s estate, shall be identified in the complaint, and their relationships to the decedent shall be alleged.” (flsenate.gov)

What every survivor may recover — § 768.21(1)

Lost support and services, in two pieces: the value lost from the date of injury to the date of death, with interest, plus future loss of support and services from the date of death, reduced to present value. The statute directs the fact-finder to weigh the survivor’s relationship to the decedent, the decedent’s probable net income available for distribution to that particular survivor, and the replacement value of the decedent’s services. Duration is measured on the joint life expectancies of survivor and decedent — and, for healthy minor children, the period of minority.

What the surviving spouse may recover — § 768.21(2)

The spouse “may also recover for loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury.” Note the accrual point: the date of injury, not the date of death. A spouse who watched a husband or wife suffer for months before dying is not limited to grief measured from the funeral.

What children may recover — § 768.21(3)

“Minor children of the decedent, and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury.”

Two rules are packed into that sentence:

• A child under 25 — one who qualifies as the decedent’s child under § 768.18(1) in the first place — stays on the subsection (3) list whether or not a spouse survives. The statute says such children “may also recover” these non-economic damages; eligibility is what the definition settles, and liability and proof still have to be established.
• Children 25 and over qualify only if there is no surviving spouse. When a surviving spouse exists, adult children lose the subsection (3) companionship and mental-pain category, not the case: they can still prove lost support and services under subsection (1), and subsection (5) lets “a survivor who has paid them” recover medical or funeral expenses out of pocket, whoever else survives.

Subsection (3) closes with a rule for catastrophes that take both parents: if both spouses die within 30 days of one another as a result of the same wrongful act or series of acts arising out of the same incident, “each spouse is considered to have been predeceased by the other” — which preserves the children’s claims rather than letting the order of death extinguish them.

What parents may recover — § 768.21(4)

“Each parent of a deceased minor child may also recover for mental pain and suffering from the date of injury. Each parent of an adult child may also recover for mental pain and suffering if there are no other survivors.”

Run that through the under-25 definition. Parents of a child who died before turning 25 “may also recover for mental pain and suffering” under subsection (4) regardless of who else survives. Parents of a child who died at 25 or older reach that category only if there are no other survivors. Read “survivors” with the full § 768.18(1) definition in hand: no surviving spouse and no children of the decedent’s own — and also no dependent blood relative and no dependent adoptive brother or sister. A financially dependent sibling can be a statutory survivor, and if one exists, the parents’ claim under subsection (4) is gone.

Medical and funeral bills — § 768.21(5)

“Medical or funeral expenses due to the decedent’s injury or death may be recovered by a survivor who has paid them.” The survivor who actually wrote the checks owns that claim personally.

What belongs to the estate — § 768.21(6)

The personal representative may recover, for the estate:

• (6)(a) — Lost earnings of the deceased from the date of injury to the date of death, less lost support of survivors excluding contributions in kind, with interest. The same paragraph allows loss of prospective net accumulations, reduced to present money value, but only in two situations: if the survivors include a surviving spouse or lineal descendants; or if the decedent was not a minor child as defined in § 768.18(2), there are no lost support and services recoverable under subsection (1), and there is a surviving parent.
• (6)(b) — Medical or funeral expenses that became a charge against the estate or were paid by or on behalf of the decedent, excluding amounts already recoverable by a survivor under subsection (5).

The same subsection contains a line defense lawyers use often and families never see coming: “Evidence of remarriage of the decedent’s spouse is admissible.”

Why the estate/survivor line matters to creditors — § 768.21(7)

“All awards for the decedent’s estate are subject to the claims of creditors who have complied with the requirements of probate law concerning claims.”

The distinction is not academic. Money awarded to the estate — lost earnings, net accumulations, funeral bills charged to the estate — can be reached by properly filed creditor claims in probate. Money awarded to a survivor under subsections (1) through (5) is that survivor’s own recovery and is not estate property subject to those claims. Which is one more reason the allocation between survivors and estate is worth fighting over rather than accepting as a formality.

Punitive damages are not in this statute

Section 768.21 is a compensation statute. Punitive damages live elsewhere and clear a much higher bar. Under Fla. Stat. § 768.72(1), “no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages” — you plead the case first and move to add punitive damages later. And under § 768.72(2), a defendant is liable for them “only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence.” (flsenate.gov) Chapter 768 separately caps punitive awards in § 768.73.

One thing this article will not do is tell you what a case is worth. There is no schedule, no multiplier, and no average. Every figure in § 768.21 is proven with evidence — earnings records, economic testimony, the actual texture of a family’s life — and anyone quoting you a number before that work is done is guessing.

The Medical-Malpractice Carve-Out at § 768.21(8): Florida’s “Free Kill” Rule and Where Families Stand in September 2026

This is where Florida law departs from every intuition a family brings to it, and where the reporting most often departs from the law.

The current text

“The damages specified in subsection (3) shall not be recoverable by adult children and the damages specified in subsection (4) shall not be recoverable by parents of an adult child with respect to claims for medical negligence as defined by s. 766.106(1).” (Fla. Stat. § 768.21(8), flsenate.gov)

Section 766.106(1)(a) defines the trigger broadly: a “claim for medical negligence” is “a claim, arising out of the rendering of, or the failure to render, medical care or services.”

Translate it into people. When a death is caused by medical negligence:

• Adult children — 25 and older — cannot recover for lost parental companionship, instruction and guidance, or for their own mental pain and suffering.
• Parents of an adult child — one who was 25 or older — cannot recover for their mental pain and suffering.

The economic categories survive. Lost support and services under subsection (1), the funeral and medical bills, the estate’s lost earnings and net accumulations — none of that is touched by subsection (8). What is stripped out is the grief.

Two identical losses, two different outcomes. A 26-year-old who leaves no other statutory survivor — no spouse, no children, no dependent blood relative or adoptive sibling — is killed by a drunk driver: the parents may recover for mental pain and suffering under § 768.21(4). The same 26-year-old dies on an operating table from negligent care: subsection (8) removes that claim entirely. Because a medical-negligence case is one of the most expensive kinds of litigation there is — multiple retained specialists before a complaint is even filed — a case stripped of its non-economic damages frequently cannot be brought at all. That practical result is why critics call the provision the “free kill” law.

What actually happened in 2025 and 2026 — from the bill histories, not the headlines

Coverage in 2025 was extensive enough that a great many summaries now assert Florida repealed this provision. It did not. Here is the record from the Legislature’s own files:

2025 — HB 6017, “Recovery of Damages for Medical Negligence Resulting in Death” (flsenate.gov bill history):

• March 26, 2025 — passed the House, YEAS 104, NAYS 6.
• May 1, 2025 — passed the Senate, YEAS 33, NAYS 4 (substituted for its companion, SB 734).
• May 23, 2025 — signed by officers and presented to the Governor.
• May 29, 2025 — vetoed by the Governor.
• June 2, 2025 — veto message received by the House, carried for consideration in the 2025 and 2026 Regular Sessions.
• June 18, 2026 — veto message transmitted to the Secretary of State. The Legislature did not override it.

2026 — HB 6003, the follow-on repeal bill (flsenate.gov bill history):

• January 15, 2026 — passed the House, YEAS 88, NAYS 17.
• March 13, 2026 — died in the Senate Rules Committee. Its stated effective date, had it become law, would have been July 1, 2026.

So the status as of September 2026 is unambiguous: § 768.21(8) is unchanged and in force. The published 2026 Florida Statutes carry the subsection verbatim, and § 768.21’s history line ends at Chapter 2020-2, Laws of Florida — there is no 2023, 2025, or 2026 chapter law amending it. A bill that passes both chambers and is vetoed is not law; a bill that dies in committee is not law. If a family was told in 2025 that the rule had been repealed, that family should have the deadline on its case re-checked immediately.

What else changes when the death was caused by medical care

Chapter 766 layers a second set of requirements on top of the Wrongful Death Act:

• Presuit investigation and a verified expert opinion. Before serving notice, the claimant must investigate and corroborate the claim with “a verified written medical expert opinion from a medical expert,” served at the time the notice of intent is mailed (§ 766.203(2), flsenate.gov).
• A same-specialty expert. Section 766.102 governs who may give that opinion and holds the provider to “the prevailing professional standard of care” for that kind of provider (flsenate.gov). A general practitioner does not corroborate a claim against a neurosurgeon.
• The 90-day screening period, during which no suit may be filed and the limitations period is tolled (§ 766.106(3)(a) and (4)).
• NICA. For qualifying birth-related neurological injuries, the Florida Birth-Related Neurological Injury Compensation Plan, §§ 766.301–766.316, is the exclusive remedy — a civil wrongful death action is unavailable. Section 95.11(5)(c) says so directly: the medical malpractice limitations paragraph “shall not apply to actions for which ss. 766.301–766.316 provide the exclusive remedy.”

Two corrections worth making, because both circulate widely:

There is no cap on non-economic damages in a Florida medical-malpractice lawsuit. The Legislature enacted caps in 2003, and the Florida Supreme Court held them unconstitutional — in wrongful death actions in Estate of McCall v. United States (2014) and in personal injury actions in North Broward Hospital District v. Kalitan (2017). Anyone still writing that Florida “caps” what a family can recover in court for a death caused by malpractice is describing law that no longer exists. One narrow exception survives, and it is voluntary: if the parties elect the binding-arbitration track in §§ 766.207–766.212 instead of suing, § 766.207(7)(b) provides that “[n]oneconomic damages shall be limited to a maximum of $250,000 per incident.” That limit applies because both sides agreed to arbitrate — nothing forces a family into it. The limit families actually run into is § 768.21(8), which removes the claim rather than capping it.

Medical negligence is still governed by pure comparative fault. HB 837 moved ordinary negligence to a modified system: under Fla. Stat. § 768.81(6), “any party found to be greater than 50 percent at fault for his or her own harm may not recover any damages.” But the very next sentence carves out this category — “This subsection does not apply to an action for damages for personal injury or wrongful death arising out of medical negligence pursuant to chapter 766.” (flsenate.gov) In a chapter 766 case, a decedent found 60% responsible does not bar the family; the recovery is reduced, not eliminated. In an ordinary negligence case, the identical percentage ends the claim.

Two limits on that last sentence are worth stating plainly, because they are where most summaries go wrong. The bar reaches only ordinary negligence — medical-negligence actions under chapter 766 are exempt by the statute’s own terms, quoted above. And it reaches only cases on the new side of the line: unlike the limitations change, which turns on when the claim accrued, the comparative-fault amendment is keyed to filing. Chapter 2023-15, § 30, provides that “[e]xcept as otherwise expressly provided in this act, this act shall apply to causes of action filed after the effective date of this act.” A negligence action filed before the act’s March 24, 2023 effective date is still governed by Florida’s former pure comparative fault rule, under which the decedent’s percentage of fault reduced the award but never erased it.

If the death in your family followed a surgery, a missed diagnosis, an anesthesia complication, or a medication error, the analysis above is the one that governs — and it is the reason medical malpractice and wrongful death are handled together at this firm rather than as separate practices.

How the Money Gets Divided — and Who Has to Approve It

One lawsuit produces one recovery, and that recovery has to be allocated among survivors with genuinely different claims — a spouse’s companionship, a minor child’s lost guidance, a dependent parent’s lost support, the estate’s net accumulations. The personal representative is a fiduciary to all of them at once.

Florida does not leave that allocation entirely to private agreement:

“While an action under this act is pending, no settlement as to amount or apportionment among the beneficiaries which is objected to by any survivor or which affects a survivor who is a minor or an incompetent shall be effective unless approved by the court.” (Fla. Stat. § 768.25, flsenate.gov)

Two triggers, either one of which puts a judge in the room: any survivor objects, or a minor or incompetent survivor is affected. When minors are involved, a second statute adds an independent protector — under Fla. Stat. § 744.3025(1)(b), “except as provided in paragraph (e), the court shall appoint a guardian ad litem to represent the minor’s interest before approving a settlement of the minor’s claim in a case in which the gross settlement involving a minor equals or exceeds $50,000,” and it may do so above $15,000 where the court believes it is necessary (flsenate.gov). That carve-out matters: paragraph (e) excuses the appointment where a guardian of the minor has already been appointed and has no potential adverse interest to the minor. And under § 744.3025(2), the guardian ad litem’s fees and costs are, unless waived, awarded out of the gross settlement proceeds.

That structure exists because the interests genuinely diverge. A settlement weighted toward the surviving spouse and away from the children is not a neutral accounting choice, and the statute is designed so that no one has to take the allocation on trust.

Where the case is filed

Venue is not decided by where the family lives. Florida’s general venue statute is short: “Actions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located. This section shall not apply to actions against nonresidents.” (Fla. Stat. § 47.011, flsenate.gov.) That is the general rule; chapter 47 and other statutes supply special venue provisions for particular defendants, and the second sentence takes nonresident defendants out of § 47.011 altogether. For a death caused by negligence in Miami-Dade County against a Miami-Dade defendant, the general rule points to the Eleventh Judicial Circuit in and for Miami-Dade County. Where the defendants reside elsewhere — or where a crash on I-95 in Broward or a collision in the Keys puts the accrual in another county — the case can properly belong in the Seventeenth or Sixteenth Circuit instead, and more than one county is often available. In cases against the state or its subdivisions, and in cases with a maritime dimension, the analysis changes again.

Discuss Your Case With a Wrongful Death Lawyer at Silva & Silva

If you have lost someone, three things need to happen quickly, and none of them can wait for grief to lift: someone has to be appointed personal representative, the evidence has to be preserved before it disappears, and the deadline has to be calculated from the correct date under the correct paragraph of § 95.11 — which, as this article has shown, is not the same paragraph in every case.

Silva & Silva was founded by two brothers whose own mother was lost to medical negligence in 1979. That loss is why the firm exists, and it is why the firm’s trial lawyers take on complex catastrophic-injury and wrongful death cases across Miami-Dade and throughout Florida — in English and in Spanish.

If a hospital, an insurer, or a defense lawyer has already told your family that nothing can be recovered, have that answer checked against the statute before you accept it. Call 305-445-0011 or request a free consultation through our contact page. There are no fees unless we recover — and with a two-year period as the general rule, running from the date of death in an ordinary negligence case and on Chapter 766’s own framework where medical care is involved, the clock started before anyone was ready.