WRONGFUL DEATH | SURVIVAL ACTIONS | FLORIDA STATUTES § 768.20 & § 46.021 | STATUTORY DISTINCTIONS
Understanding the key legal distinctions, statutory beneficiary categories, recoverable damages, and procedural rules under Fla. Stat. § 768.16–768.27 and Fla. Stat. § 46.021.
Published: September 27, 2023
Case Law: Martin v. United Security Services, Inc., 314 So. 2d 765 (Fla. 1975); Atlas Properties, Inc. v. Didich, 226 So. 2d 684 (Fla. 1969); Smith v. Lusk, 356 So. 2d 1309 (Fla. 1st DCA 1978)
Key Authorities: Fla. Stat. § 768.16–768.27 (Wrongful Death Act); Fla. Stat. § 46.021 (Survival of Actions)
Jurisdiction: Florida State Courts
Differences Between Survival Action and Wrongful Death in Florida
Multiple types of legal claims may arise after a person dies. Specifically, claims may exist on behalf of the surviving family members and on behalf of the decedent’s estate. The wrongful death attorneys at Maderal Byrne Furst PLLC explain the legal distinctions between survival actions and wrongful death claims in Florida.
Family members may bring a wrongful death claim in Florida, seeking financial compensation when a personal injury results in death. Similarly, the victim’s estate may bring a survival action, seeking compensation for losses sustained by the estate. The two types of claims differ significantly in the damages sought and who ultimate benefits from the recovery.
Survival action vs. wrongful death at a glance
Wrongful Death:
Who benefits? → Qualifying family members, including the spouse, children, parents, and dependent relatives
Who files the claim? → Personal representative
Damages → Lost support and services, companionship, mental pain, and suffering
Pain and suffering → Yes, for closely related survivors
Subject to creditor claims of the estate → No
Medical/funeral expenses → Yes, by the one who paid them
Survival Action:
Who benefits? → The Estate
Who files the claim? → Personal representative
Damages → Lost income, net accumulations to the estate
Pain and suffering → No
Subject to creditor claims of the estate → Yes
Medical/funeral expenses → Yes, if chargeable to the estate
When a person dies as the result of a personal injury, family members suffer both financially and personally. Simultaneously, the victim’s estate suffers a loss of earnings and lost financial accumulations.
The primary difference between a wrongful death and a survival action involves whose damages are compensated. A wrongful death claim compensates family members, whereas a survival action compensates the estate.
Understanding Wrongful Death and Survival Actions in Florida
Florida Statutes § 768.19 creates a right of action when a death is caused by the wrongful act, negligence, default, breach of contract, or breach of warranty of any person. If the underlying events would have entitled the victim to recover damages had death not occurred, the responsible party remains liable for damages.
In Florida, wrongful death and survival claims are combined into a single court filing. The claims of all potential beneficiaries of a recovery for wrongful death, including the decedent’s estate, are named in the complaint. Only the court-appointed personal representative is authorized to bring the lawsuit for wrongful death. (Florida Statutes § 768.21).
Who gets pain and suffering in a wrongful death – the survivors or the estate?
In Florida, pain and suffering damages in a wrongful death claim are payable to survivors based on the mental anguish that they endure due to the loss of their loved one. Florida Statutes §§ 768.16–768.27 replaces the pain and suffering endured by the victim before death with compensation for the pain and suffering of the surviving family members.
It may seem frustrating that the pain and suffering experienced by the victim before death is not recognized in a fatal injury claim. However, this rule reflects a common point of statutory distinction between wrongful death and survival actions.
When a personal injury results in death, the traditional personal injury action abates. It is replaced by the wrongful death and survival actions, which shift the pain and suffering recovery to the family members rather than to the estate. (Florida Statues § 768.20).
Constitutional challenges to this statutory framework failed. In Martin v. United Security Services, Inc., 314 So. 2d 765 (Fla. 1975), the Florida Supreme Court affirmed that the legislative intent of the statute is clear. The Court reasoned that evidence is more readily available when survivors testify as to their own mental pain and suffering rather than speculating on the decedent’s pain prior to death.
Practitioner note: The personal representative may plead alternative claims for pain and suffering for injuries not resulting in death alongside a wrongful death count. This strategy is appropriate when a causation dispute exists regarding whether the defendant’s original act caused the death (Smith v. Lusk, 356 So. 2d 1309 (Fla. 2d DCA 1978)).
Damages in Wrongful Death vs. Survival Actions
The wrongful death portion of a claim focuses on individual losses sustained by each statutory beneficiary, including:
- Lost support and services
- Companionship, protection, instruction, and guidance
- Mental pain and suffering
- Medical or funeral expenses, if a survivor has paid them
Conversely, the survival action compensates losses sustained directly by the estate:
- Loss of earnings from injury until death
- Net accumulations of the estate
- Medical or funeral expenses, if chargeable to the estate
Are punitive damages available in a wrongful death or survival action in Florida?
In Atlas Properties, Inc. v. Didich, 226 So.2d 684 (Fla.1969), the Florida Supreme Court ruled that public policy permits punitive damages in wrongful death and survival actions.
To award punitive damages, compensatory damages must be established. Additionally, only one claim for punitive damages may be awarded per death.
Is a Personal Injury Claim Dismissed if the Victim Dies? – Florida Statutes § 46.021
It is essential to distinguish between a personal injury that directly causes the victim’s death and an unrelated personal injury action that is pending when an independent death occurs.
In a fatal injury context, the term “survival action” describes the claim brought by the estate for economic losses resulting from the fatal injury. However, when a separate, unrelated legal matter is pending at the time of death, a different rule applies.
For example, assume a person is injured in a car accident and files a lawsuit. Later, in an event completely unrelated to the car accident, the person suffers a fall that results in their death. The pending car accident lawsuit survives under Florida law.
Florida Statutes § 46.021 governs these circumstances. The statute provides that no cause of action dies with the person, allowing claims to be commenced, prosecuted, and defended in the name of the deceased. Consequently, unrelated torts and other legal claims may be started or continued after a party’s death.
Although the term “survival action” is used both in the context of estate claims under a wrongful death filing and in reference to unrelated claims surviving under § 46.021, they represent distinct legal concepts governed by separate procedural rules and damage calculations.
Talk to a Florida Wrongful Death Lawyer
At Maderal Byrne & Furst, we pursue all opportunities for our clients to receive fair compensation. If you have lost a loved one, we want to help. We value the time spent talking with prospective clients. Contact us today to talk about possible claims, your rights, and how we can support you.
About Maderal Byrne & Furst
Maderal Byrne & Furst PLLC is a Miami-based personal injury law firm. We encourage you to learn more about our firm, meet our attorneys, explore our other practice areas, view our results or see our rating and reviews on Google.
LEGAL DISCLAIMER: This blog post is provided for general informational and educational purposes only. It does not constitute legal advice and does not create an attorney-client relationship. The law is subject to change, and the application of legal principles varies depending on the specific facts of each case. If you have questions about your specific situation, you should consult a licensed Florida attorney. This post discusses legal concepts and principles addressed in the cited case(s). It is not intended to make any assertions about the truth of any allegations or evidence relating to any party to that case.
Citations & Sources
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Fla. Stat. § 768.19 (Right of Action)
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Fla. Stat. § 768.20 (Parties and Abatement)
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Fla. Stat. § 768.21 (Damages)
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Fla. Stat. § 46.021 (Actions Survive)
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Martin v. United Security Services, Inc., 314 So. 2d 765 (Fla. 1975)
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Atlas Properties, Inc. v. Didich, 226 So. 2d 684 (Fla. 1969)
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Smith v. Lusk, 356 So. 2d 1309 (Fla. 1st DCA 1978)
