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FLORIDA WRONGFUL DEATH ACT |
(STATUTES)
Disclaimer: This is part of the 2006 version of Florida Statutes and it is offered for general information purposes. The statutes on this site should not be relied on without reviewing your legal situation with an experienced medical malpractice lawyer and making sure you are using the appropriate version of the statute for your case. The provisions applicable to your potential claim may or may not be the version that was in effect at the time of the incident because some changes to statutes are retroactive and some changes are not. Other statutes and other case law interpreting or applying these statutes may also apply to your case.
(The information on this site applies to Florida only)
768.16 Wrongful Death Act.--Sections 768.16-768.26 may be cited as the
"Florida Wrongful Death Act."
History.--s. 1, ch. 72-35; s. 105, ch.
2003-1.
768.17 Legislative intent.--It is the public policy of the state to shift the
losses resulting when wrongful death occurs from the survivors of the decedent
to the wrongdoer. Sections 768.16-768.26 are remedial and shall be liberally
construed.
History.--s. 1, ch. 72-35; s. 106, ch. 2003-1.
768.18 Definitions.--As used in ss. 768.16-768.26:
(1) "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.
(2) "Minor children" means children under 25 years of age,
notwithstanding the age of majority.
(3) "Support" includes contributions in kind as well as money.
(4) "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. These services may vary according to the identity of the decedent
and survivor and shall be determined under the particular facts of each case.
(5) "Net accumulations" means the part of the decedent's expected net
business or salary income, including pension benefits, that the decedent
probably would have retained as savings and left as part of her or his estate
if the decedent had lived her or his normal life expectancy. "Net business
or salary income" is the part of the decedent's probable gross income after
taxes, excluding income from investments continuing beyond death, that remains
after deducting the decedent's personal expenses and support of survivors,
excluding contributions in kind.
History.--s. 1, ch. 72-35; s. 66, ch.
77-121; s. 40, ch. 77-468; s. 1, ch. 81-183; s. 3, ch. 89-61; s. 1, ch. 90-14;
s. 1167, ch. 97-102; s. 107, ch. 2003-1.
768.19 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, including those occurring on navigable waters, and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued, the person or watercraft that would have been liable in damages if death had not ensued shall be liable for damages as specified in this act notwithstanding the death of the person injured, although death was caused under circumstances constituting a felony.
History.--s. 1, ch. 72-35.
768.20 Parties.--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. 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. The wrongdoer's personal representative shall be the defendant if the wrongdoer dies before or pending the action. A defense that would bar or reduce a survivor's recovery if she or he were the plaintiff may be asserted against the survivor, but shall not affect the recovery of any other survivor.
History.--s. 1, ch. 72-35; s. 1168, ch. 97-102.
768.21 Damages.--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. Damages
may be awarded as follows:
(1) Each survivor may recover the value of lost support and services from the
date of the decedent's injury to her or his death, with interest, and future
loss of support and services from the date of death and reduced to present
value. In evaluating loss of support and services, the survivor's relationship
to the decedent, the amount of the decedent's probable net income available for
distribution to the particular survivor, and the replacement value of the
decedent's services to the survivor may be considered. In computing the
duration of future losses, the joint life expectancies of the survivor and the
decedent and the period of minority, in the case of healthy minor children, may
be considered.
(2) The surviving spouse may also recover for loss of the decedent's
companionship and protection and for mental pain and suffering from the date of
injury.
(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. For the purposes of this subsection, 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.
(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.
(5) Medical or funeral expenses due to the decedent's injury or death may be
recovered by a survivor who has paid them.
(6) The decedent's personal representative may recover for the decedent's
estate the following:
(a) Loss of 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.
Loss of the prospective net accumulations of an estate, which might reasonably
have been expected but for the wrongful death, reduced to present money value,
may also be recovered:
1. If the decedent's survivors include a surviving spouse or lineal
descendants; or
2. If the decedent is not a minor child as defined in s. 768.18(2), there are
no lost support and services recoverable under subsection (1), and there is a
surviving parent.
(b) Medical or funeral expenses due to the decedent's injury or death that have
become a charge against her or his estate or that were paid by or on behalf of
decedent, excluding amounts recoverable under subsection (5).
(c) Evidence of remarriage of the decedent's spouse is admissible.
(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.
(8) 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).
History.--s. 1, ch. 72-35; s. 2, ch. 81-183;
s. 1, ch. 85-260; s. 2, ch. 90-14; s. 1169, ch. 97-102; s. 1, ch. 2002-44; s.
66, ch. 2003-416.
768.22 Form of verdict.--The amounts awarded to each survivor and to the estate shall be stated separately in the verdict.
History.--s. 1, ch. 72-35.
768.23 Protection of minors and incompetents.--The court shall provide protection for any amount awarded for the benefit of a minor child or an incompetent pursuant to the Florida Guardianship Law.
History.--s. 1, ch. 72-35.
768.24 Death of a survivor before judgment.--A survivor's death before final judgment shall limit the survivor's recovery to lost support and services to the date of his or her death. The personal representative shall pay the amount recovered to the personal representative of the deceased survivor.
History.--s. 1, ch. 72-35; s. 1170, ch. 97-102.
768.25 Court approval of settlements.--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.
History.--s. 1, ch. 72-35.
768.26 Litigation expenses.--Attorneys' fees and other expenses of litigation shall be paid by the personal representative and deducted from the awards to the survivors and the estate in proportion to the amounts awarded to them, but expenses incurred for the benefit of a particular survivor or the estate shall be paid from their awards.
History.--s. 1, ch. 72-35.
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