Section 768.21, Florida Statutes, provides for certain surviving family members to receive compensation for loss of the deceased’s economic support and emotional companionship, mental pain and suffering, medical expenses and funeral costs. Minor children may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering. Each parent of a deceased minor child may also recover for mental pain and suffering.
Which surviving family members have the right or responsibility to make a claim for wrongful death in Florida?
Section 768.18, Florida Statutes, defines “survivors” as 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 a 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. Minor children are children under 25 years of age.
Generally, yes. Section 768.20, Florida Statutes provides that the wrongdoer’s Personal Representative shall become the Defendant if the wrongdoer dies. In other words, if the person at fault dies, your wrongful death case continues against the Personal Representative of the estate of the wrongdoer.
Any person who believes that he or she may be a survivor or beneficiary entitled to compensation because of a wrongful death would have the right to consider starting the investigation of a potential claim. Sometimes the most logical person to investigate or start a claim (such as a widow) is not willing or able to look into the matter. In such a situation, any survivor or beneficiary may petition the court to name them as the personal representative of the estate of the deceased if an estate is not opened already.
Generally, yes. Wrongful death cases are different from other negligence cases in Florida. The following are examples of some of the unique issues inherent in wrongful death cases:
- It is necessary to prove that the death was caused by the misconduct of another person or company. This is complicated at times when other potential causes are present. For example, a seriously ill person who received improper medication in the hospital. In that circumstance, the defense often argues that the death was really just the natural progression of the underlying disease or condition.
- It is always necessary to prove the life expectancy of the deceased in order to determine what their future losses would be. This is not a major problem if the deceased was in perfect health at the time of the misconduct. But, it becomes complicated if the deceased had a life-threatening or life-shortening disease or condition.
- It is likewise necessary to prove the life expectancy of each survivor or beneficiary. After all, the future relationship would only have existed during the period of the joint life expectancy of the deceased and the survivor.
- The nature of the relationship between the deceased and the survivor, in all of its relevant aspects, must be fully developed and presented. Sometimes the relationship is almost storybook perfect and sometimes it is quite different. In either event, it needs to be understood and documented in order to support the individual claim of the survivor.
- Much of the true loss in a wrongful death claim is non-economic or emotional in nature. This requires special skills and care in the development of the proof and in its presentation. It is a matter that is quite different from just permitting an injured person to describe their back pain.
- It is mandatory that each of the survivor’s claims are developed and presented fairly. They cannot favor or appear to favor one survivor over another. This is especially true in certain situations. For example, a widow is the personal representative of an estate and has responsibility to present a claim on her own behalf and another claim on behalf of a stepchild. There are many other situations that require a special effort to assure a fair process.