Florida Wrongful Death Statute of Limitations: Deadlines and Exceptions
Florida’s wrongful death statute of limitations is two years from the date of death under Fla. Stat. 95.11(4)(e). The clock starts on the day the person died, not on the day of the incident that caused the death. Three exceptions extend or remove this deadline: deaths caused by murder or manslaughter (no time limit at all), claims against state or local government entities (special notice rules under Fla. Stat. 768.28), and certain medical malpractice cases where fraud or concealment delayed discovery. Miss the deadline and the case is permanently dead. Period.
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Florida Wrongful Death Law in Plain English
Florida wrongful death cases run on the Florida Wrongful Death Act (Fla. Stat. 768.16-768.26). The Act creates a single legal action that covers both the surviving family members’ losses and the decedent’s estate’s losses. There is no separate “survival action” in Florida that runs in parallel; the Wrongful Death Act consolidates everything into one claim filed by the personal representative of the estate.
Who Can File a Florida Wrongful Death Case?
Only the personal representative of the decedent’s estate can file. Not the spouse directly, not the children directly, not the parents. The personal representative is appointed by the probate court (typically within a few weeks of opening the estate). The personal representative files the lawsuit on behalf of the decedent’s estate and on behalf of all eligible survivors. This procedural rule trips up many families. They try to file a lawsuit themselves and find out it must be filed through the estate.
Who Counts as a Survivor Under Florida Law?
Under Fla. Stat. 768.18, survivors include: the decedent’s spouse, children (including adoptive children and children born out of wedlock if paternity is established), parents (biological or adoptive), and any blood relative or adoptive sibling who was wholly or partially dependent on the decedent for support or services. Each survivor has a specific damages claim. Adult children of decedents over 25 with surviving spouses face limits under Fla. Stat. 768.21(8): they cannot recover for mental pain and suffering when the death was the result of medical malpractice (the so-called “free kill” rule, currently under reform pressure in the legislature).
The Two-Year Deadline: When Does It Start?
Florida’s two-year statute of limitations runs from the date of death, not the date of the underlying personal injury. This is a critical distinction that confuses many families. Example: a person was injured in a car wreck on March 1, 2024, lingered in the hospital, and died on June 15, 2024. The wrongful death two-year clock started June 15, 2024. The deadline to file is June 15, 2026, not March 1, 2026.
Before HB 837 (signed March 24, 2023), Florida’s negligence statute of limitations was four years for the underlying injury claim. That four-year period was reduced to two years for injuries occurring on or after March 24, 2023. Wrongful death has always been two years (under what is now Fla. Stat. 95.11(4)(e)), so the HB 837 change did not alter the wrongful death deadline directly, but it did change the timeline for the underlying injury claim that may exist in parallel.
Why Acting Early Matters Even With Two Years on the Clock
Two years feels like a lot of time. It is not. Probate must be opened, a personal representative must be appointed, evidence must be preserved, witnesses must be located and interviewed, medical records must be obtained from every provider, and the underlying liability investigation must be completed. We have seen families wait 18 months because they were grieving and find that key witnesses had moved, surveillance footage had been destroyed, and medical records had been archived offsite. The case survived the deadline but lost half its value to evidence decay.
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Three Exceptions to the Two-Year Deadline
Exception 1: Murder or Manslaughter
Under Fla. Stat. 95.11(10), wrongful death claims arising from murder or manslaughter have no statute of limitations. The civil case can be filed at any time, even decades later, even if no one has been arrested or convicted of the crime. The civil burden of proof is preponderance of the evidence (more likely than not), which is much lower than the criminal beyond-reasonable-doubt standard. We have seen civil wrongful death cases succeed where criminal prosecutions failed because of the difference in proof standard.
This exception covers homicide, vehicular homicide, manslaughter, and aggravated manslaughter. It does not cover ordinary negligence cases just because they involved a death. The death must have been caused by an intentional or reckless criminal act.
Exception 2: Claims Against Government Entities (Fla. Stat. 768.28)
Wrongful death claims against the State of Florida, counties, cities, school boards, and other government entities operate under sovereign immunity rules. You must give the government written notice of the claim before filing suit. Under Fla. Stat. 768.28(6)(a), notice must be given within three years (most claims) or two years (wrongful death) and must be sent to the Department of Financial Services in Tallahassee plus the specific agency involved. You cannot file the lawsuit until the agency has had six months to investigate and respond.
Damages against government entities are capped at $200,000 per person and $300,000 per incident, absent a legislative claims bill. The agency’s review period tolls the statute of limitations during the investigation window. Government wrongful death cases require strict procedural compliance; one missed notice deadline can kill an otherwise winnable case.
Exception 3: Medical Malpractice Wrongful Death
Florida medical malpractice has its own statute of limitations rules under Fla. Stat. 95.11(4)(b) and 766.106. The basic rule is two years from when the incident was discovered or should have been discovered, with an absolute outer limit of four years from the actual incident, except in cases involving fraud, concealment, or intentional misrepresentation by the healthcare provider. In those cases, the four-year cap is extended to seven years.
Medical malpractice wrongful death also requires a pre-suit investigation period under Fla. Stat. 766.203, including a written expert affidavit confirming reasonable grounds to believe malpractice occurred. The investigation can take several months. Combined with the statutory notice and waiting periods, medical malpractice wrongful death cases require attorneys to start work months before the formal deadline approaches.
What Damages Can Be Recovered in a Florida Wrongful Death Case?
Damages under the Florida Wrongful Death Act fall into two categories: damages recoverable by individual survivors and damages recoverable by the estate.
Survivors’ Damages (Fla. Stat. 768.21)
- Lost support and services from the date of injury to the date of death (with interest)
- Future loss of support and services (reduced to present value)
- Loss of companionship and protection (for spouses)
- Loss of parental companionship, instruction, and guidance (for minor children)
- Mental pain and suffering (for the surviving spouse and minor children, and for adult children if there is no surviving spouse)
- Lost parental support (for surviving parents of a deceased minor child)
- Mental pain and suffering (for parents of a deceased minor child, and for parents of a deceased adult child if there are no other survivors)
Estate Damages (Fla. Stat. 768.21(6))
- Lost earnings of the decedent from the date of injury to the date of death
- Loss of prospective net accumulations of the estate (reduced to present value): when the decedent’s age, financial circumstances, and other factors support an accumulations claim
- Medical and funeral expenses paid by or on behalf of the decedent
- Punitive damages when the at-fault party acted with gross negligence or intentional misconduct
Common Florida Wrongful Death Case Types
- Fatal car and motorcycle crashes
- 18-wheeler and commercial truck wrongful deaths
- Uber/Lyft rideshare fatalities
- Medical malpractice (surgical errors, misdiagnosis, medication errors)
- Nursing home neglect and elder abuse
- Pedestrian and cyclist fatalities
- Drunk driving and impaired driving deaths (often supports punitive damages)
- Workplace fatalities (often involves third-party claims outside workers’ comp)
- Defective product fatalities (vehicle defects, medical device failures)
- Drowning and pool accidents (premises liability + Florida’s residential pool barrier laws)
What Damages Apply to Your Family’s Case?
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What to Do in the First 30 Days After a Florida Wrongful Death
- Open the estate in probate court. The personal representative cannot file the wrongful death case until they are formally appointed. We recommend probate filing within the first 14-21 days when possible.
- Preserve all evidence connected to the death. Vehicle, medical records, employment records, surveillance footage from the scene, witness contact information. Send formal preservation letters to anyone who might destroy evidence.
- Do not give recorded statements to insurance companies. The at-fault party’s insurer will call within days sounding helpful. Refer them to your attorney.
- Gather and centralize all medical records, employment records, tax returns, and benefits statements. Future damages models depend on these.
- Identify all surviving family members who may have a claim. Each survivor has separate damages. Missing survivors at the start can reduce recovery later.
- Hire an experienced Florida wrongful death attorney before the funeral if possible. Evidence preservation cannot wait. Initial consultation is free and creates no obligation.
- If the death involves a government entity, send the Fla. Stat. 768.28 notice immediately. The notice triggers the six-month investigation window. Delay and the deadline can run while you wait.
Common Defenses Insurance Companies Use in Florida Wrongful Death Cases
Insurance defense lawyers in wrongful death cases run a predictable playbook. Knowing the moves in advance lets us neutralize them.
The Comparative Fault Push
Under Florida HB 837 (2023), Florida is now a modified 51% comparative negligence state. Defense will argue your loved one bore some percentage of fault, and they will push hard to get the jury to assign 51% or more, which would zero out the recovery. We document every contribution to the wreck or incident from the defendant’s side, including distraction, intoxication, fatigue, and policy violations, to keep the comparative needle on the right side.
The Pre-Existing Condition Argument
Defense will pull the decedent’s medical records back five or ten years, looking for any pre-existing condition they can argue contributed to the death. We work with treating physicians and pathology experts to lock in causation. The legal standard is whether the at-fault party’s conduct was a substantial cause of the death, not the only cause.
The “No Damages” Position
When the decedent did not have substantial earnings or formal employment, defense will argue economic damages are minimal. We counter with replacement value of services rendered to the family (childcare, household management, eldercare, financial planning), prospective net accumulations, and the survivors’ mental pain and suffering damages, which often dwarf the economic component.
Anonymized Florida Wrongful Death Case Patterns
Below are anonymized case patterns from Florida wrongful death matters in the past 36 months. Names removed; injury and settlement ranges accurate.
Trucking Wrongful Death: Hillsborough County
Decedent was a 38-year-old breadwinner with three minor children, killed when an 18-wheeler ran a red light. Carrier had $1M primary plus $4M excess. Settlement: $4.2 million, divided among the surviving spouse, three minor children, and the estate’s prospective net accumulations claim.
Drunk Driver Wrongful Death: Pinellas County
Decedent was a 24-year-old killed by a drunk driver. Defendant had a $250,000 policy plus a $1M umbrella. We pursued punitive damages under Fla. Stat. 768.73 because the defendant blew 0.21. Settlement: $1.45 million, including punitive damages disclosure during depositions.
Nursing Home Neglect Wrongful Death: Broward County
Decedent was an 82-year-old who died from sepsis caused by an untreated pressure ulcer at a Florida nursing home. We pursued claims under Fla. Stat. 400.022 (resident’s rights) and the Wrongful Death Act. Settlement: $875,000.
Frequently Asked Questions
How long do you have to file a wrongful death lawsuit in Florida?
Two years from the date of death under Fla. Stat. 95.11(4)(e). The clock starts on the date of death, not the date of the incident that caused the death. Three exceptions extend or remove this deadline: murder/manslaughter cases (no time limit), government entity claims (different notice rules under Fla. Stat. 768.28), and certain medical malpractice cases involving fraud or concealment.
Who can file a wrongful death lawsuit in Florida?
Only the personal representative of the decedent’s estate can file the lawsuit. The personal representative is appointed by the probate court and acts on behalf of the estate and all eligible survivors. Spouses, children, and parents cannot file directly; they must wait for the personal representative to be appointed.
Does the murder or manslaughter exception have a time limit?
No. Under Fla. Stat. 95.11(10), wrongful death claims arising from murder or manslaughter have no statute of limitations. The civil case can be filed at any time, even if no one has been arrested or convicted of the underlying crime. The civil burden of proof (preponderance) is much lower than criminal (beyond reasonable doubt).
What damages are available in a Florida wrongful death case?
Damages include lost support and services to surviving family members, lost companionship and parental guidance, mental pain and suffering (for certain survivors), medical and funeral expenses, lost earnings of the decedent from injury to death, and prospective net accumulations of the estate. Punitive damages are available in cases involving gross negligence or intentional misconduct.
Can I sue Florida government for wrongful death?
Yes, but with strict rules under Fla. Stat. 768.28. You must give written notice within two years of the death. Damages are capped at $200,000 per person and $300,000 per incident absent a legislative claims bill. The agency has six months to investigate before suit can be filed.
How much do wrongful death lawyers cost in Florida?
Wrongful death cases run on contingency. Standard fee is 33.33% of recovery if settled pre-suit, 40% if a lawsuit is filed. You pay nothing upfront. Costs (expert witnesses, depositions, accident reconstruction) come from the recovery at the end. If we lose, you owe nothing.
How long does a Florida wrongful death case take?
Most cases settle in 12-24 months. Cases involving complex liability (medical malpractice, multi-defendant trucking, government entities) often run 24-36 months. Cases that go to trial run 18-30 months from filing to verdict.
What is the average wrongful death settlement in Florida?
There is no true average because case values run from $250,000 for cases with limited insurance coverage up to $20 million+ for catastrophic-liability cases involving children, breadwinners, or punitive damages. Median Florida wrongful death settlements typically fall in the $750,000-$2.5 million range.
Compliance & Disclaimer
United Law Group represents clients in Florida and Texas. The information in this article is general and not legal advice. Every case turns on its specific facts. Past results do not guarantee future outcomes. Contacting us does not create an attorney-client relationship; that relationship begins only when a written representation agreement is signed. Florida Bar Rule 4-7.13 requires this disclosure.
