Florida wrongful death lawyer

What “minor child” actually means in this statute

In the Wrongful Death Act, a minor child is a child under 25. Not under 18.

Fla. Stat. § 768.18(2) defines minor children as “children under 25 years of age, notwithstanding the age of majority.” The statute says so expressly, precisely because the result is counterintuitive.

This is not a technicality. It decides whether a 22-year-old who lost a parent may recover for lost parental companionship, instruction and guidance, and for mental pain and suffering — which in many families is the largest element of the claim. Under the general law they are an adult. Under this Act they are a minor child, and they recover.

Families are told the opposite constantly, usually by someone reasoning from the age of majority rather than from the statute. It is worth checking the ages before accepting that anyone is excluded.

The other half of the rule matters just as much: if there is no surviving spouse, all of the decedent’s children qualify under § 768.21(3), whatever their ages. A 40-year-old child of an unmarried parent recovers what a 40-year-old child of a married parent does not.

Which relatives are survivors, and which are not

Section 768.18(1) defines survivors as the decedent’s spouse, children and parents, and then adds a second category that is frequently overlooked.

Any blood relative or adoptive brother or sister who was partly or wholly dependent on the decedent for support or services is also a survivor. A grandchild being raised by a grandparent, a sibling supported by the decedent, a dependent cousin — these are survivors under the Act where the dependency existed, and they are routinely left out because the family assumes the list stops at spouse, children and parents.

For a child born out of wedlock, the statute distinguishes: the child is a survivor of the mother, and of the father only where he had recognized a responsibility for the child’s support.

Two further definitions do a lot of work. Support includes contributions in kind as well as money, so what the decedent provided in goods and labor counts and not only what they paid. Services are the tasks, usually of a household nature, that the decedent regularly performed and that the survivors would now have to pay someone to do.

That second one is persistently under-claimed. The childcare, the cooking, the driving, the maintenance, the care of an elderly relative — these have a replacement cost, the statute makes it recoverable, and nobody thinks of it as a loss with a number attached.

The damages the Act gives to each category of survivor

Florida does not give every survivor the same claim. Section 768.21 assigns different damages to different people.

Every survivor may recover the value of lost support and services, from the date of injury to the date of death with interest, and from the date of death forward reduced to present value. A court may weigh the survivor’s relationship to the decedent, the decedent’s probable net income available to that survivor, and the replacement cost of the decedent’s services.

A surviving spouse recovers that, plus loss of the decedent’s companionship and protection, plus mental pain and suffering from the date of injury.

Children under 25 — and all children where there is no surviving spouse — recover lost parental companionship, instruction and guidance, plus mental pain and suffering from the date of injury.

Each parent of a deceased minor child recovers mental pain and suffering from the date of injury. Parents of a deceased adult child recover it only where there are no other survivors.

Any survivor who paid medical or funeral expenses because of the injury or death recovers those expenses directly.

One detail worth knowing before it arrives in a deposition: evidence that a surviving spouse has remarried is admissible.

Lost earnings, net accumulations, and the creditors

The estate’s claim is separate from the survivors’ claims and is easy to under-plead, because it is the least intuitive part of the Act.

Lost earnings from injury to death, with interest, reduced by the survivors’ lost support — so the same money is not counted twice.

Lost prospective net accumulations, reduced to present value. “Net accumulations” is defined at § 768.18(5) as the part of the decedent’s probable after-tax income, pension included, that they would have saved and left in their estate over a normal life expectancy, after their own personal expenses and the support of their survivors.

That element is conditional, and the condition is the thing people miss. Under § 768.21(6)(a) it is recoverable only where the survivors include a surviving spouse or lineal descendants, or where the decedent was not a minor child as the Act defines one, no support and services damages are recoverable, and a parent survives. Outside those situations it is simply not available.

Medical and funeral expenses that became a charge against the estate, or were paid by or for the decedent, are recoverable by the estate — excluding anything already recovered by a survivor who paid them.

And a warning about where the money goes: amounts awarded to the estate are subject to the claims of creditors who have complied with the probate claim requirements. Damages recovered by survivors in their own right are not. How a recovery is apportioned between the estate and the survivors is therefore a decision with consequences, not a formality at the end.

When the Act takes the claim away entirely

If the death was caused by medical negligence, the rules above change, and they change against the family.

Under § 768.21(8), in a claim for medical negligence as defined in § 766.106(1), an adult child cannot recover the subsection (3) damages — lost parental companionship, instruction and guidance, and mental pain and suffering. The parents of an adult child cannot recover the subsection (4) mental pain and suffering.

Where an unmarried adult with no children dies because of medical negligence, the people closest to them may have no claim for the loss itself. The estate can still pursue certain economic losses and expenses, but the damages that usually make such a case possible to bring are removed by statute.

It applies only to medical negligence. The same death caused by a crash, a defective product or a property owner’s negligence is not affected by this provision at all, which is why identifying the cause correctly is the first question rather than a later one.

The provision is known in Florida as the “free kill” law and it has survived two serious attempts at repeal. A repeal passed both chambers in 2025 and was vetoed on May 29, 2025. In the 2026 session HB 6003 passed the House 88–17 on January 15, 2026, then died in Senate Rules on March 13, 2026. It is still the law.

A medical negligence death also has to clear the Chapter 766 presuit requirements — an investigation, a corroborating opinion from a doctor in the same specialty, and a notice of intent — before anything can be filed.

Two years, probate, and the one case with no deadline

A Florida wrongful death action must be brought within two years of the date of death. Fla. Stat. § 95.11(5)(e).

Worth being clear about, because it is widely misstated: this period was not shortened by the 2023 tort reform. Wrongful death has been two years for a long time. What 2023 changed was the general negligence period, cut from four years to two, and the renumbering that moved the wrongful death paragraph to its present place.

The practical deadline is earlier than the legal one, because nothing can be filed until a personal representative is appointed. That means opening probate, and probate runs on its own schedule while the two years runs on this one.

There is one case with no deadline at all. Under § 95.11(11), a wrongful death action against a natural person for an intentional tort resulting in death from acts described in § 782.04 or § 782.07 may be brought at any time, notwithstanding the two-year rule. Where a death was caused by an intentional act rather than carelessness, the civil claim may still be open long after a family has been told it is closed.

Where the death came from medical negligence, Chapter 766 presuit tolls the limitation period for the 90-day screening window — but only once the notice of intent is served, which cannot happen until the records are gathered and a qualified expert has signed.

The separate track under sovereign immunity

Where a public hospital, a city, a county, a school board or a state agency is responsible, Fla. Stat. § 768.28 governs and the sequence changes completely.

A written claim comes first. For a wrongful death it must be presented to the Department of Financial Services within two years after the claim accrues — not the three years that applies to other claims. Presenting the claim and receiving a denial are conditions precedent to filing suit at all.

The agency then has 90 days for a wrongful death claim, rather than the six months that applies generally. If it makes no final disposition in that time the claim is deemed finally denied, and the family may proceed.

The limitation period is tolled for the time the Department or the agency takes to deny the claim, so the notice process does not eat the two years — provided it was started inside them.

One trap worth naming: the four-year outer period in § 768.28(14) that people often quote does not apply to wrongful death. The section directs wrongful death and medical malpractice actions back to the limitations in § 95.11(5), which is two years.

And recovery against a government is capped at $200,000 per person and $300,000 for all claims arising from the same incident, with no punitive damages and no prejudgment interest. Anything above that requires the Legislature to pass a claim bill.