How To File a Wrongful Death Lawsuit

If you have lost a loved one because of someone else’s negligence, you have the right to pursue legal action. While justice looks different for every family, the goal remains the same — to hold those who caused your loved one’s death accountable for their actions. Navigating the complexities of filing a wrongful death lawsuit can feel challenging and at times daunting, but an experienced wrongful death lawyer can help simplify the process.

At the law offices of Bernstein & Maryanoff Injury Attorneys, our Miami wrongful death attorneys are committed to representing victims like you and your family. We are here to help you navigate this difficult journey. Our attorneys are not just legal advocates in your case. We are also compassionate guides who can help you understand the legal process so you can find the closure you deserve. 

What Is Florida’s Definition of a Wrongful Death?

Florida allows surviving family members the right to sue negligent parties for the wrongful death of a loved one in order to recover damages. A wrongful death lawsuit can be brought forward “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,” as outlined in Florida’s wrongful death statute. 

How a Wrongful Death Attorney Can Help

There are several steps to filing a wrongful death lawsuit, and an experienced wrongful death attorney can ensure the process is followed in a timely manner. Working with an experienced wrongful death attorney can position your case for the best possible outcome.

Assist You in Opening the Estate and Appointing a Personal Representative

Florida’s wrongful death statute allows the personal representative of the victim’s estate to file a lawsuit on behalf of surviving family members. 

Florida’s probate process — the process of transferring property from a deceased individual to living individuals who are eligible to inherit it — can feel overwhelming. A wrongful death attorney will help simplify this process by opening the estate and appointing a personal representative. 

In an ideal world, the decedent will have a will that names their personal representative. If no personal representative is named, or if there is no will, the surviving spouse will typically be appointed as the personal representative. If there is no spouse, a surviving family member will be named instead.

Handle the Details Allowing You To Focus on Your Needs

Regardless of a decedent’s net worth or assets, the probate process can be difficult to navigate especially as you and your family process the unexpected death of your loved one. An experienced wrongful death attorney will handle all the details of your case as they apply to Florida’s wrongful death statute and other applicable laws. 

An attorney will help guide you through any aspect of the process you don’t understand and will help alleviate the stress associated with court filing deadlines, documentation to submit, and the overall legal process. 

An Attorney Will Establish Negligence

Four elements must be present to prove negligence in a Florida wrongful death lawsuit. An attorney can help prove these elements so you have a robust case. These four elements include:

• The defendant owed a legal duty to the victim: A plaintiff must show that the defendant owed a legal duty of care to the plaintiff. A defendant’s legal duty to a plaintiff can change depending on the circumstances of the case. For example, a shop owner has a legal duty to provide a safe business environment for their customers during business hours, but that duty typically does not extend to trespassers who come on the property outside of business hours. 
• The defendant violated their duty of care: Once a legal duty has been established, and a defendant does not adhere to the legal duty, then a breach of duty has occurred
• The legal or proximate cause of death was that breach: The legal concept of “proximate causation” establishes that a defendant’s actions are what caused harm to the victim. Had it not been for the defendant’s actions, the victim would not have been harmed.
• The victim suffered consequential damages as a result: Because of a defendant’s actions, a plaintiff suffered injuries that led to their death. Florida’s wrongful death statute allows plaintiffs to claim other losses, including funeral and burial expenses, pain and suffering, loss of consortium, and other losses. Unlike other claims, there is no cap on compensatory damages a plaintiff can claim in a Florida wrongful death lawsuit. 

They Will Negotiate a Settlement or Take the Case to Trial

An overwhelming majority of wrongful death lawsuits end in settlements, and very few ever go to trial. When negotiating settlement terms, a wrongful death attorney will ensure your family’s rights and interests are protected. Experienced wrongful death attorneys are skilled negotiators who can help your family recover a comprehensive settlement agreement.

If a settlement is unable to be reached, a wrongful death attorney will represent you when your case goes to trial and will thoroughly defend your case in front of a judge or jury.

What Is the Statute of Limitations for a Wrongful Death in Florida?

As with many other legal claims, Florida establishes a statute of limitations or a deadline for when a wrongful death claim can be filed. Under Florida statute, a decedent’s family may bring forward a claim two years from the date of the death. 

If a family waits beyond this period to file a wrongful death lawsuit, they will be barred from recovering compensation for their loved one’s passing. There are instances where this statute can be “tolled” or paused, and it can sometimes happen during a wrongful death that resulted from a crime or if a government agency is involved. A wrongful death attorney can help guide you further on how the statute of limitations can apply to your specific case.

If You Have Lost a Loved One, Give Bernstein & Maryanoff Injury Attorneys a Call

The loss of a loved one is a profound experience, and the pain, confusion, and anger can be magnified if it is because of another party’s negligence. At Bernstein & Maryanoff Injury Attorneys, our attorneys understand firsthand the complexities of helping victims find justice for their loved ones. Filing a wrongful death lawsuit can be a step in the direction of healing and recovery. Our team is here to support you as you navigate the legal path forward. Your loved one’s memory and legacy deserve to be honored, and our dedicated attorneys are here to help you do just that. 

Our team is committed to providing the support and legal expertise you need during this challenging time. Call us to schedule your free case evaluation and take the first step in recovering the justice you and your family deserve.

Sources:

Bieber, C. (2023). Wrongful Death Lawsuit Guide 2024.

FLA. STAT. §  768.19.

FLA. STAT. § 768.21.FLA. STAT. § 95.11 (4)(d).