When a serious accident occurs, the legal questions can feel overwhelming—especially when both the victim and the at-fault party pass away. Many families assume that if the person who caused the accident is also deceased, there is no legal claim left to pursue.
That assumption is often wrong.
Under Florida law, a wrongful death claim can still be filed against the at-fault party’s estate. While these cases involve additional legal steps and strict deadlines, Florida law does not allow negligent parties—or their estates—to escape responsibility simply because they died.
This article explains how wrongful death claims against an estate work in Florida and what families should know.
Can You File a Wrongful Death Claim If the At-Fault Party Is Dead?
Yes. Florida law allows wrongful death claims to proceed against the estate of a deceased at-fault party.
When someone causes a fatal accident—such as a car crash, boating accident, medical error, or premises incident—and later dies (either in the same incident or afterward), their legal liability does not automatically disappear. Instead, the claim is pursued through the probate estate of the deceased wrongdoer.
Common scenarios include:
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Fatal car accidents where both drivers die
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DUI crashes where the intoxicated driver dies at the scene
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Medical malpractice where the negligent provider dies before suit
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Elderly drivers causing fatal crashes shortly before their own death
Who Brings the Wrongful Death Claim in Florida?
In Florida, wrongful death claims are not filed directly by family members.
Instead:
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The claim must be filed by the personal representative of the deceased victim’s estate
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The claim is brought on behalf of surviving family members and the estate
Eligible beneficiaries typically include:
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The surviving spouse
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Children (including adult children in some cases)
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Parents
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Other dependents in limited circumstances
How Does a Claim Against an Estate Work?
When the at-fault party is deceased, the claim must be handled in coordination with Florida probate law.
Key steps usually include:
1. Identifying the Estate
If probate has already been opened, the claim is filed against:
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The estate, and
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The personal representative of the at-fault party
If probate has not been opened, it may need to be initiated solely to pursue the claim.
2. Filing a Creditor’s Claim
Wrongful death claims are considered claims against the estate and must comply with probate deadlines.
Failure to timely file a claim in probate can bar recovery, even if liability is clear.
3. Litigation and Insurance Coverage
In many cases, the estate’s liability insurance (auto insurance, homeowner’s insurance, professional malpractice coverage) is the primary source of recovery—not personal assets.
The lawsuit may proceed similarly to other wrongful death cases, but judgments are typically satisfied through:
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Insurance proceeds, and
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Estate assets, if applicable
What Damages Are Available in These Cases?
Florida wrongful death damages may still be recovered even when the defendant is deceased, including:
For Surviving Family Members
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Loss of companionship and protection
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Mental pain and suffering
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Loss of support and services
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Loss of parental guidance for children
For the Estate
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Medical expenses related to the fatal injury
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Funeral and burial expenses
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Lost earnings and benefits
The fact that the defendant is deceased does not reduce the value of legally recoverable damages.
What Are the Time Limits?
Deadlines are critical and often more complicated in estate cases.
Wrongful Death Statute of Limitations
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Generally two years from the date of death
Probate Deadlines
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Probate creditor claim deadlines may be much shorter
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Missing probate deadlines can permanently bar recovery
Because of these overlapping time limits, early legal action is essential.
Common Misconceptions About These Claims
“You can’t sue someone who’s dead.”
False. You sue the estate, not the individual.
“There’s no money if the driver died.”
Often false. Insurance coverage frequently applies regardless of death.
“Probate makes it impossible.”
Probate adds complexity, but it does not eliminate legal rights.
Why These Cases Require Experienced Legal Help
Wrongful death claims against estates involve:
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Florida wrongful death law
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Probate procedures and deadlines
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Insurance coverage analysis
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Coordination between civil and probate courts
Mistakes can permanently eliminate a family’s right to compensation.
Talk to a Florida Wrongful Death Attorney
If your loved one died due to someone else’s negligence—and that person also passed away—you may still have a valid wrongful death claim under Florida law.
An experienced Florida wrongful death attorney can:
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Determine whether a claim can be filed
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Identify available insurance coverage
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Ensure probate and lawsuit deadlines are met
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Protect your family’s legal and financial rights
These cases are emotionally difficult and legally complex—but families should not assume they have no options.
Contact Florida Wrongful Death Lawyer J.P. Gonzalez-Sirgo by dialing his direct number at (786) 272-5841, calling the main office at (305) 461-1095, or Toll Free at 1 (866) 71-CLAIM or email Miami Attorney Gonzalez-Sirgo directly at jp@yourattorneys.com or by text at (305) 929-8935.
