The simple answer is that only the Personal Representative of a decedent's estate is eligible to pursue a wrongful death claim. A Personal Representative can be designated by a decedent's will or appointed by the probate court.
The Personal Representative brings the wrongful death claim on behalf of all the survivors of the decedent. Who are eligible survivors is strictly defined by the law and may change depending on the circumstances of the death and the age and the status of the individual survivors.
Eligible "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 can be argued that the law does not treat illegitimate children fairly. An illegitimate child of a deceased's mother is a survivor but not the survivor of a deceased father unless the father has recognized responsibility for the child's support.
It is important to also recognize that "minor children" is defined under Florida law as children under 25 years of age.
Some examples of how the law defines who are "eligible" survivors, depending on the circumstances of the death and the status of the survivors, are as follows:
- Generally if a decedent was married, his or her spouse and children and the estate are eligible survivors.
- If the decedent was not married but did have children, the children and the estate are survivors.
- If the decedent was unmarried and childless and the decedent was under 25, the parents of the decedent may bring an action for wrongful death.
- If the decedent was married but his or her children were all adults (that is, over 25 years of age), only the spouse may recover.
- If the decedent was unmarried at the time of his or her death, then his adult children may recover for mental pain and suffering.
- IMPORTANT - IF THE DECEDENT DIED AS A RESULT OF MEDICAL MALPRACTICE, THE RULES ARE DIFFERENT IN SOME WAYS:
- If the decedent was under 25 and unmarried, his or her parents may recover for mental pain and suffering.
- However, if the decedent was over 25, even if he was unmarried, his or her parents may not recover.
- If the decedent was unmarried, adult children may not recover.
As can be seen from the above, the laws concerning "who may recover" in the event of a "wrongful death" are complex. An attorney board certified by the Florida Bar and experienced in wrongful death litigation should be consulted so that all survivors' rights are fully protected.