Someone in our family was killed in a Fort Myers accident. Who files the claim, and who can recover?
Only one person files a Florida wrongful death case: the personal representative of the estate, who brings it for every survivor and for the estate itself (Fla. Stat. § 768.20). The survivors the law recognizes are the spouse, the children, the parents, and, if they relied on the person for support or services, blood relatives and adoptive brothers and sisters (Fla. Stat. § 768.18). Suit generally has to be filed within two years (Fla. Stat. § 95.11), counted from the date of death.
Wolfson & Leon, at 3049 Cleveland Ave in Fort Myers, has stood with grieving Florida families since 1963. There is no charge to talk with the firm, in Spanish or English, and the family owes nothing in fees unless money is recovered: 239-309-1392.
Who is the personal representative, and how does someone become one?
The personal representative is the person a probate judge authorizes to act for the estate. When there is a will, it usually names someone for the job. When there is not, the court chooses, and the choice is often the surviving spouse or a grown child. For someone who lived in Lee County, the estate is opened in the circuit court here, in the Twentieth Judicial Circuit.
Think of the role as a trustee for the whole family. The personal representative signs the papers and makes decisions with the lawyer, but the money is divided among the survivors and the estate as the statute directs, and a settlement involving minor children generally needs a judge's sign-off. Opening the estate is handled by the firm as part of the case.
What if our loved one lived in another state and was here for the season?
Winter residents and visitors are part of Lee County life from roughly January through April, and some of the hardest calls the firm takes come from families in Ohio, Michigan, New York, or Canada. Where the family lives does not decide where the case belongs. A death caused by negligence on a Lee County road, beach, or waterway is generally governed by Florida law, and the lawsuit can usually be filed here.
A few practical points follow. Florida lets a nonresident serve as personal representative only if he or she is closely related to the person who died, such as a spouse, parent, child, or sibling (Fla. Stat. § 733.304), so a relative back home can often take the role. An estate may need to be opened in Florida even when the rest of the person's affairs are handled up north. And much of the work, from records and insurance claims to court filings, can move forward while the family stays home, with phone and video meetings as needed.
What can the survivors and the estate recover?
Florida sorts the damages by who is asking (Fla. Stat. § 768.21). For this statute, "minor children" means children under 25.
- Each survivor: the support and services lost between the injury and the death, with interest, plus the support and services the person would have provided in the future.
- A surviving spouse: the loss of companionship and protection, and the spouse's own mental pain and suffering, starting from the date of the injury.
- Children under 25 (or all children, when there is no surviving spouse): the loss of a parent's companionship, instruction, and guidance, and mental pain and suffering.
- Parents: a parent who loses a minor child may claim mental pain and suffering; when the child was an adult, the parents have that claim only if no other survivors exist.
- Medical and funeral bills that a survivor paid, or that the estate owes.
- The estate: the earnings lost between the injury and the death, and, in some cases, "net accumulations," roughly what the person would have saved over a normal lifetime.
What kinds of deaths in Lee County lead to these claims?
Most begin on the road. Families call after fatal crashes on I-75 near the Colonial, Daniels, and Alico interchanges, on US 41 through Fort Myers and south toward Estero and Bonita Springs, on Pine Island Road, and on the long, fast roads of Lehigh Acres such as Lee Blvd and Joel Blvd, where people on foot and on bicycles have little room. In season, rental cars and drivers who do not know the area add to the risk.
The water is the other half of life here. Boating deaths happen in Pine Island Sound, San Carlos Bay, Estero Bay, Matlacha Pass, the Caloosahatchee, and Cape Coral's canals. When a boating accident is serious enough to be reportable, FWC (the Florida Fish and Wildlife Conservation Commission) looks into it, and its report is one of the first pieces of evidence. Florida treats vessels as dangerous instrumentalities (Fla. Stat. § 327.32), which can make an owner answerable for how someone else ran the boat, and a death on navigable water can also raise federal maritime-law questions.
Other cases come from falls at storm-damaged or half-repaired buildings in the years since Hurricane Ian, drownings in pools without proper barriers, deaths on job sites caused by someone other than the employer, medical negligence, and defective products. Proving fault works just as it would if the person had survived; what the Wrongful Death Act changes is who is paid, and for what.
How long does the family have, and what can change that?
Two years from the date of death, in most cases (Fla. Stat. § 95.11). Two situations add steps. If the death followed medical care, the Chapter 766 presuit process has to be finished first, and under Fla. Stat. § 768.21(8) some survivors lose the right to pain-and-suffering damages. When a public body is involved, such as a LeeTran bus, a Lee County School District bus, a vehicle belonging to Lee County, Fort Myers, or Cape Coral, or a road maintained by FDOT, Fla. Stat. § 768.28(6) requires that the agency first get the claim in writing, and only then can a lawsuit follow.
Either way, no suit can be filed until the estate is open, and evidence like vehicle data, phone records, and surveillance video does not last, so it helps to call while there is still time to act.
How is a wrongful death recovery valued and shared?
The figures start with the person who died: age, health, work, and what he or she provided to each family member, both in money and in daily help. A spouse's and children's losses of companionship and guidance are added under Fla. Stat. § 768.21, along with medical and funeral bills, and the estate's own claim for lost earnings and net accumulations. Special limits apply when medical negligence caused the death (Fla. Stat. § 768.21(8)) or when a government body is responsible (Fla. Stat. § 768.28).
Once there is a recovery, the personal representative proposes how to divide it and the court approves the division. A minor's share may stay under court supervision until the child is older. From the first conversation, the firm explains which of your relatives count as survivors under the statute and what each may claim.
Which missteps can weaken a family's death claim?
- Accepting an insurer's check before the estate is opened and every survivor is known; the deal may not hold up, and it is usually low.
- Letting the car, the boat, the scene, or the medical records disappear. The person who died cannot testify, so the physical evidence has to tell the story.
- Assuming every partner or adult child has a claim. The Act names survivors specifically; ask before you assume.
- Treating two years as plenty of time. Before anything can be filed, the estate has to be opened, and a death after medical care needs presuit finished as well.
- Talking on the record with the at-fault driver's or owner's insurance company while grieving and without a lawyer.
Key facts
- The personal representative brings the case, for the benefit of the survivors and of the estate. Source: Fla. Stat. § 768.20
- Survivors are the spouse, children, and parents, plus blood relatives and adoptive siblings who depended on the person who died. Source: Fla. Stat. § 768.18
- Recoverable losses include lost support and services, companionship and guidance, emotional suffering, and the bills for medical care and the funeral. Source: Fla. Stat. § 768.21
- A wrongful death lawsuit generally must be filed within two years after the death. Source: Fla. Stat. § 95.11
- When medical negligence caused the death, some survivors cannot recover pain-and-suffering damages. Source: Fla. Stat. § 768.21(8)
- Claims against a government body require written notice before suit. Source: Fla. Stat. § 768.28(6)
- A nonresident can serve as personal representative only if closely related to the person who died. Source: Fla. Stat. § 733.304
Frequently asked questions
We lived together for years but never married. Do I have a claim?
Not in your own name. Florida's Wrongful Death Act does not list an unmarried partner as a survivor. Any children you had together are survivors, though, and if the court names you personal representative, you can pursue the case for them. The firm will tell you plainly what the law allows for your family.
An insurance adjuster has already offered the family money. Should we take it?
Not until the estate is open, every survivor has been identified, and the full value of the loss is understood. A wrongful death settlement generally needs a court's approval to protect each survivor, minor children above all, and early offers tend to come in well below what the claim is worth.
The police said our family member was partly to blame. Does that end the case?
No. Under Florida's comparative fault rule, the recovery is reduced by that person's share of fault, and it is barred only when that person's share is over 50% (Fla. Stat. § 768.81). Who was at fault is frequently contested, and the crash report is not the last word.
How is the money split among relatives?
A judge has the final word: the personal representative suggests a split, the court reviews and approves it, and what each survivor receives turns on the relationship and on that person's losses under Fla. Stat. § 768.21. The firm explains the process to the whole family and answers each person's questions.
We live up north. Will we have to keep traveling to Fort Myers?
Probably not often. Most of the case, including records, insurance, and court filings, can be handled by phone, email, and video. Some steps, such as a deposition, a mediation, or a trial, may call for a trip, and the firm plans those with the family well in advance.
Is this the same as the criminal case against the driver?
No. A criminal case is brought by the State Attorney's Office to punish the driver. A wrongful death case is a separate civil claim for the family's losses, with a lower burden of proof, and it can move forward whether or not criminal charges are filed.
What happens when you call
A real person picks up
Call 239-309-1392 at any hour. Someone from the firm answers, in Spanish if you like. Late at night, we take your information and an attorney calls you early the next morning.
About 15 minutes on what happened
We ask when and where it happened, what medical care you have had, whether police wrote a report, and whether an insurer has contacted you. You do not need any documents handy.
An honest answer
If yours is a case we can take, we explain what comes next and what to avoid in the meantime. If it is not, we tell you plainly and point you to who else might help.
Nothing up front if you hire us
We take a percentage of any money recovered, and that is put in writing before you sign. No recovery, no fee. If getting to the office is hard, we will come to where you are, whether that is home or a hospital bed.
We have not written about this topic yet. Give us a call and an attorney will answer your question.