Florida adds a step to a wrongful death case that surprises many families: the claim cannot be filed by the grieving relatives directly. It has to be brought by the personal representative of the estate. Understanding that role, and the probate steps behind it, keeps a case from stalling at the starting line.
Why the claim runs through one person
Section 768.20 channels the entire wrongful death claim through the personal representative of the deceased person’s estate, who brings one action for the benefit of all the survivors and the estate. This avoids a tangle of competing lawsuits and gives the case a single voice. The trade-off is a procedural requirement: the estate generally must be opened and the representative appointed before the suit can proceed.
When a family loses someone, the last thing they should have to shoulder is a maze of court filings, and no lawsuit undoes the loss in the first place. I take that weight off you. I represent families, not insurance companies, and I built my skills in the courtroom as a public defender, trying numerous cases and cross-examining witnesses again and again. I handle the wrongful death claim personally and coordinate the probate steps, including opening the estate and getting a personal representative appointed the way Florida law requires. When an insurer will not do right by your family, I am ready to take the case to a jury. Learn more about my background.
Opening the estate
If the deceased person left a will naming an executor, that person usually becomes the personal representative. If not, the probate court appoints one, often a close family member. Because the wrongful death claim depends on this appointment, the probate step and the injury case move together, and I coordinate them so the claim is not held up by paperwork while a deadline runs.
Court approval and dividing the recovery
When the case resolves, the recovery is divided among the survivors and the estate according to each one’s losses. Florida requires court approval of a settlement when it affects a survivor who is a minor or an incompetent person, or when the survivors do not agree, under section 768.25. Litigation expenses and attorney’s fees are allocated among the recoveries as the statute directs. That oversight exists to protect the people the recovery is for, especially children.
The representative’s role, with guidance
Serving as a personal representative comes with duties, but it does not mean carrying the case alone. The representative makes decisions for the benefit of the survivors and estate with counsel’s guidance, and acting properly in the role does not expose the representative to personal liability for the wrongdoer’s conduct.
The deadline
A wrongful death claim generally must be filed within two years of the date of death under Fla. Stat. 95.11. The evidence, from the records to the witnesses, is easier to preserve early, so the sooner the work begins, the stronger the claim.
Common Questions
Who is the personal representative in a wrongful death case?
The personal representative is the person who administers the deceased person's estate and is the only one who can file the wrongful death lawsuit. If the person left a will naming an executor, that person usually serves. If not, the probate court appoints a personal representative.
Do we have to open a probate estate to bring the claim?
Usually yes. Because only the personal representative can file, the estate generally has to be opened and the representative formally appointed by the probate court before the wrongful death suit can go forward. The injury lawyer often coordinates this with the probate process.
Does a wrongful death settlement need court approval?
Often. When a settlement affects a survivor who is a minor or an incompetent person, or when survivors disagree about it, Florida law requires the court to approve the settlement and how it is divided. This protects the people the recovery is meant for.
How is the recovery divided among survivors?
Each survivor's share reflects their own losses, which differ by relationship and circumstances. The personal representative, with the court where required, allocates the recovery among the survivors and the estate. Litigation expenses and fees are apportioned according to the statute.
Does being personal representative make me personally liable?
The role carries duties, but acting properly as a personal representative does not make you personally responsible for the wrongdoer's conduct. The representative's job is to pursue and administer the claim for the survivors and estate, with guidance from counsel.
Related: Wrongful death overview, Who can recover, Wrongful death damages, Time limits, and About Rory Safir.
This page is general information about Florida wrongful death law, not legal advice, and it does not create an attorney-client relationship. The governing authorities are Fla. Stat. 768.20 (parties), 768.25 (court approval of settlements), and 768.26 (litigation expenses) within the Florida Wrongful Death Act, together with Florida probate law and Fla. Stat. 95.11. Every case is different, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely on advertisements.
