Who Can File a Wrongful Death Claim in Florida? The Personal Representative Rule and Who Counts as a Survivor

By the trial attorneys at Silva & Silva

Who can file a wrongful death lawsuit in Florida? Only the personal representative of the person who died. Under Fla. Stat. § 768.20, the representative brings the lawsuit for the benefit of the estate and every survivor; family members do not file their own suits. The probate court appoints the representative, giving first preference to the person named in the will and, when there is no will, following the order in § 733.301, starting with the surviving spouse.

Florida routes every claim under its Wrongful Death Act through the personal representative and then sorts the recovery by relationship. Every statute quoted below was read in the 2026 Florida Statutes on October 14, 2026.

The Rule: Only the Personal Representative Can File

A Florida wrongful death claim exists because a statute creates it, and that statute names the plaintiff: “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)

The personal representative is the person the probate court appoints to administer the estate, Florida’s name for the role that has been known as an executor or administrator. Three rules follow:

• Everyone’s claim is in the same case. “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” (§ 768.21). The spouse, children, parents and estate are identified in the representative’s complaint, not in suits of their own.
• The injured person’s own lawsuit ends. “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” (§ 768.20). The recovery for the death comes through the representative’s wrongful death action instead.
• A defense against one survivor stays with that survivor. It “shall not affect the recovery of any other survivor” (§ 768.20).

Who the Personal Representative Is, and How the Court Appoints One

The probate court makes the appointment by granting letters of administration, following the order of preference in § 733.301:

• With a will: first, the personal representative the will nominates; second, “the person selected by a majority in interest of the persons entitled to the estate”; third, a devisee under the will.
• Without a will: first, the surviving spouse; second, “the person selected by a majority in interest of the heirs”; third, “the heir nearest in degree.”

If more than one devisee, or more than one heir nearest in degree, applies, the court “may select the one best qualified.” If none of the listed people applies, the court “shall appoint a capable person” (§ 733.301(3)).

The person must also qualify:

• Who may serve. Any person who is sui juris (legally able to act on his or her own behalf) and was a Florida resident at the time of the death (§ 733.302).
• Who may not. Anyone convicted of a felony; anyone convicted in any state or foreign jurisdiction of abuse, neglect or exploitation of an elderly person or a disabled adult; anyone mentally or physically unable to perform the duties; and anyone under 18 (§ 733.303). If the person a will names is not qualified, letters are granted under the § 733.301 order instead.
• Nonresidents. A person not domiciled in Florida qualifies only as the decedent’s legally adopted child or adoptive parent; a direct-line blood relative of the decedent, such as a parent, grandparent, child or grandchild; the decedent’s spouse, brother, sister, uncle, aunt, nephew or niece, or a direct-line blood relative of one of them; or the spouse of a person otherwise qualified under § 733.304.

Who Counts as a Survivor Under Florida Law

Survivors do not file, but the lawsuit is brought for them. Section 768.18(1) defines them:

“‘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.”

• A spouse, a child or a parent needs no showing of dependency. Any other blood relative, and an adoptive brother or sister, must have been partly or wholly dependent on the decedent for support or services. “Support” includes contributions in kind as well as money; “services” means “tasks, usually of a household nature, regularly performed by the decedent that will be a necessary expense to the survivors” (§ 768.18(3)-(4)).
• “Minor children” means “children under 25 years of age, notwithstanding the age of majority” (§ 768.18(2)).
• The definition does not mention stepchildren, in-laws or unmarried partners.

When There Is No Will, or the Family Disagrees About Who Should Serve

An argument about who should file is really an argument about who should serve, and § 733.301 sets the order. With no will, a surviving spouse comes first. Next is the person chosen by “a majority in interest” of the heirs, measured by their interests in the estate rather than by a count of relatives, so family agreement carries weight but ranks behind a surviving spouse. Then comes the heir nearest in degree; when more than one applies, the court chooses.

An appointment can be revisited. If someone with a higher preference did not waive it and was never served formal notice, that person can seek the appointment; the earlier letters may be revoked, and the person entitled to preference may receive letters after formal notice and a hearing (§ 733.301(4)). If survivors disagree about a proposed settlement or how it is divided, the court hearing the wrongful death case must approve it before it takes effect (Fla. Stat. § 768.25); a dispute about who should serve as personal representative belongs to the probate court (§ 733.301).

Who serves does not change who recovers. Each survivor’s share is still his or her own: § 768.21 assigns damages by relationship; at trial, “the amounts awarded to each survivor and to the estate shall be stated separately in the verdict” (§ 768.22); and while the action is pending, a 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” is not effective unless the court approves it (§ 768.25).

How the Estate’s Claim and the Survivors’ Claims Fit Together

The representative’s lawsuit carries two kinds of claims. The survivors’ claims belong to the survivors and are set by relationship in § 768.21(1)-(5): every survivor’s lost support and services; a spouse’s, children’s or parents’ claims for companionship, guidance or mental pain and suffering, each on the conditions the statute sets; and medical or funeral expenses a survivor paid.

The estate’s claim is separate. Under § 768.21(6), the representative recovers the estate’s own losses, such as the decedent’s lost earnings between injury and death and medical or funeral expenses charged to the estate. The line matters because “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” (§ 768.21(7)). That subsection reaches the estate’s award, not the survivors’ recoveries.

For what each category covers, survivor by survivor, see What damages can a family recover in a Florida wrongful death case?

When the Death Was Caused by Medical Negligence

One subsection changes who can recover, though not who files: “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)” (§ 768.21(8)). A claim for medical negligence is “a claim, arising out of the rendering of, or the failure to render, medical care or services” (§ 766.106(1)(a)).

So when medical negligence caused the death, an adult child (25 or older, because the Act’s minor children are those under 25) cannot recover for lost parental companionship, instruction and guidance or for mental pain and suffering, and parents of an adult child cannot recover for their mental pain and suffering. The estate’s claim and the other survivors’ claims, including every survivor’s lost support and services, are untouched by that subsection, and the personal representative still files. In the public debate over repeal, the provision has been called the “free kill” law.

Status, checked October 14, 2026: HB 6017 (2025), which would have repealed the exception, passed both chambers and was vetoed by the Governor on May 29, 2025. HB 6003 (2026) passed the House and died in the Senate Rules Committee on March 13, 2026. The exception remains in force, printed unchanged in the 2026 Florida Statutes.

The Two-Year Deadline, and Why the Appointment Comes First

Under § 95.11(5)(e), “an action for wrongful death” must be brought within two years. For a death caused by ordinary negligence, the two years run from the date of death, not the date of the accident; when medical care caused the death, the medical-malpractice timing rules in § 95.11(5)(c) can also apply. One exception removes the deadline: under § 95.11(11), an action “brought against a natural person for an intentional tort resulting in death from acts described in s. 782.04 or s. 782.07” (the murder and manslaughter statutes) “may be commenced at any time,” with no arrest, criminal charge or conviction required first. Claims against a business, or for negligence, keep their ordinary deadlines.

Because the action is brought by the personal representative, the probate appointment is usually the family’s first legal step. A Florida wrongful death lawyer can help settle who should serve and which deadline applies.

Frequently Asked Questions

Can a sibling file a wrongful death lawsuit in Florida?

Not in his or her own name. Only the personal representative files, for the estate and every survivor (§ 768.20). A brother or sister can be that representative if the probate court appoints them under § 733.301, and siblings are among the relatives who may serve even from outside Florida (§ 733.304). A sibling is not a survivor automatically: under § 768.18(1), a blood relative, including a blood sibling, or an adoptive brother or sister counts as a survivor only when partly or wholly dependent on the decedent for support or services.

Can more than one family member file a wrongful death claim?

Not as separate lawsuits. The personal representative brings the action, and every potential beneficiary, including the estate, must be identified in the complaint (§ 768.21). Each survivor’s claim stays separate inside that case: damages are set by relationship, a verdict states each survivor’s award and the estate’s separately (§ 768.22), and a defense against one survivor does not reduce another’s recovery (§ 768.20).

Does the personal representative have to be a family member?

No. A will can nominate someone outside the family, and the people entitled to the estate can select a person by a majority in interest (§ 733.301). Any adult who is sui juris and was a Florida resident at the time of the death can serve, subject to the probate code’s other limits: the order of preference in § 733.301, the disqualifications in § 733.303 (a felony conviction, listed abuse convictions, inability to perform the duties, being under 18), and the nonresident rule in § 733.304. Family ties matter for nonresidents, who can serve only within the relationships § 733.304 lists.

Can a parent file for the death of an adult child in Florida?

A parent does not file personally; the personal representative does, and a parent can be appointed to that role under § 733.301. As survivors, parents of an adult child (25 or older) can claim lost support and services like any survivor, but can recover for mental pain and suffering only “if there are no other survivors” (§ 768.21(4)). When medical negligence caused the death, § 768.21(8) removes that mental pain and suffering recovery.

Who gets the money in a Florida wrongful death settlement?

It is apportioned among the beneficiaries, because each holds a separate claim. Each survivor’s damages under § 768.21(1)-(5) belong to that survivor; the estate’s recovery under § 768.21(6) is subject to creditors’ claims filed under probate law (§ 768.21(7)). While the case is pending, a settlement any survivor objects to, or one affecting a minor or incompetent survivor, needs court approval (§ 768.25). For the categories, see what damages a family can recover in a Florida wrongful death case.

Talk With Silva & Silva About Who Should File

Silva & Silva is a Coral Gables trial firm that handles wrongful-death cases across Florida and prepares every case for trial from day one. If your family is working out who should serve as personal representative or what each survivor’s claim includes, we can go through it with you in a free consultation, in English or Spanish. There are no fees unless we recover. Learn more about our Florida wrongful death practice, call 305-445-0011, or contact us online.