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Wrongful Death Series Part 1: What Is The First Legal Step To Pursue A Florida Wrongful Death Case?

Florida Wrongful Death CaseThe first step in pursuing a Florida wrongful death case is to determine who can legally bring the case. In order to hire a lawyer to evaluate or investigate a potential Florida wrongful death case, you must have the authority to hire the lawyer. To explain the source of this power or authority, we must first discuss the evolution of Florida wrongful death cases.

The law in the United States is basically a creature of British common law. In other words, our laws have generally evolved from the laws of the country that had the most influence on our country before we gained our independence.

Common Law: Laws That Come From Long-Standing Court Decisions Over Many Years Are Called “Common Law.”

Common Laws vs. Statutory Laws

Common laws are different from statutory laws since they come from court decisions over many years, while statutory laws come from laws that are passed by either a city, county, state, or federal legislative body. Legislative bodies pass laws that they feel are necessary to make sure that their citizens have the rights they deserve. These rights change over time as society changes, and therefore, legislative bodies pass laws to address concerns raised in our ever-evolving world.

Under common law, there was no civil right to recover damages for a person’s wrongful death. You could recover for the damages suffered by the person from the time of injury until their death, but as soon as they died, the damages under common law ceased to exist. The common law based this decision on various factors like the fact that many times the cause of death is also a criminal act and therefore the civil action would be part of the criminal case; the near impossibility of placing value on human life; and that historically, tort damages (like injury, pain, and suffering) could only affect a living human being and once the human is dead, his/her damages would cease to exist.

The Lord Campbell Act

In 1846, the Lord Campbell Act was passed in England, which provided a statutory right of recovery for the wrongful death of a relative. This Act ended the prohibition on the recovery of civil damages for the wrongful death of a relative and gave rise to what would eventually be called the Florida Wrongful Death Act. In 1883, Florida passed a version of the Lord Campbell Act, making it possible for someone to bring a Florida wrongful death case on behalf of a deceased relative.

Florida Wrongful Death Act

Over the years, the initial Florida Wrongful Death Act has been revised, and a substantial revision occurred in 1972. The reason that discussion of the statutes and revisions is important is that a wrongful death case is a 100% creature of the statute, and if the statute doesn’t provide for something, then there is a presumption that the legislature affirmatively concluded that it should not be permitted.

Surviving Minor Children

For example, the initial Florida Wrongful Death Act didn’t include a clear definition of minor children and prohibited them from recovering if there was a surviving spouse.  The Florida Wrongful Death Act was later defined by the legislature as any “unmarried” child under 21 years of age. After several other revisions to the Florida Wrongful Death Act, the term “survivor” now includes more than just minor children and does not require the absence of a surviving spouse and allows recovery for the children even if there is a surviving spouse.

Who Has The Right To Bring A Florida Wrongful Death Case?

The Florida Wrongful Death Act must speak to the issues involved or they do not exist. This includes who has the right to bring a Florida wrongful death case. The Florida Wrongful Death Act states that the only party who can legally hire a lawyer and pursue a wrongful death case is the personal representative.

Personal Representative

A personal representative is a person that is appointed by the probate court of the county where the decedent lived. The personal representative is appointed by the probate court and preference is given to those chosen in a will by the decedent and/or the surviving spouse.

If the person dies without a will (which is the vast majority of people), then the probate court will evaluate the surviving relatives and if there is more than one immediate next of kin, like two siblings and no surviving spouse, then the court will allow the relatives to agree on whom to serve as personal representative or will conduct an evidentiary hearing to determine who is best suited to serve as personal representative.

The Probate Court Process

accident attorney PensacolaSo the first step in the Florida Wrongful Death process is the probate court process to nominate a personal representative. Our firm has a probate lawyer that we utilize for our wrongful death cases, and this process can take as little as a week and at most months to conclude. Obviously, the more disagreement about who would be the best personal representative, the longer this process will take. So, hiring a personal injury lawyer for a Florida wrongful death case should also involve a discussion about the personal representative since that is the only person that can legally direct the wrongful death case and he/she is the only person who has the legal right to bring such an action in court.

Keep in mind that the Florida Wrongful Death Act also provides a definition for “survivors” of a deceased relative for purposes of the Act. The Florida Wrongful Death Act also defines what type of damages each survivor is entitled to request.


Many times, the personal representative is not even a survivor and cannot collect any damages for the wrongful death action, but the probate court feels they are best suited to manage the case affairs and, therefore, they are named the personal representative.

Joe Zarzaur is a Board Certified Civil Trial Lawyer whose firm is dedicated to promoting community safety since 2007. ZARZAUR LAW’S AREAS OF PRACTICE: Serious Personal Injury, Product Defect, Auto Accidents, Cycling Accidents, Motor Vehicle Accidents, Products Liability, Wrongful Death, Community Safety, Boat and Jet Ski Accidents, Slip and Fall Injuries, and more. Licensed in Alabama and Florida.

If you or a loved one is in need of a FREE legal consultation in regards to your wrongful death case, speak with Zarzaur Law’s Florida Wrongful Death Act experts. Put yourself in the best possible position to receive the justice you deserve. It is also important to consult with a Board Certified Trial lawyer who has the knowledge and experience to help you. We know accidents can be stressful and want to make the process as easy as possible for you. Call Zarzaur Law, P.A. today at (855) Hire-Joe for a free legal consultation or visit