In Florida, the state’s wrongful death statute contained in Chapter 768, Florida Statutes, specifies that only the Personal Representative of the deceased person’s estate may bring a wrongful death action.
The Personal Representative brings the action seeking to recover for the benefit of the decedent’s survivors and the estate all allowable damages caused by the injury resulting in death. Under the statute, only certain damages can be awarded for causing the wrongful death and those damages can only be awarded to certain survivors (such as spouse, and in some cases children or parents) and under very limited circumstances, to the estate.
The Personal Representative brings the action on behalf of the estate and the applicable survivors–seeking the damages which can be recovered. Once the recovery is made, the Personal Representative must distribute the damages according to the type of damages recovered and based on who are the survivors.
So, by way of example, if a man is killed by another person’s negligence, and the man is survived by a wife and minor children, the wife and kids are entitled to receive a recovery for damages. However, the wife and kids cannot bring the action–only the Personal Representative may take that action.
Because only a Personal Representative can bring the wrongful death action, a probate must always be opened in any estate in which such an action is pursued. No other person has the authority to bring the action.
