Children of decedents are considered survivors under Florida’s Wrongful Death Act. Children of the decedent may recover some types of damages as “survivors.” The recovery of a child may turn on whether the child is considered a “minor child” under the Wrongful Death Act.
Florida Statutes 768.12. The Wrongful Death Act states that “minor children” are children under the age of 25.
Any child of the decedent, regardless of age, has the ability to recover the value of lost support and services from the day of the decedent’s injury forward. Florida Statute 768.21.
If the decedent was married at the time of his or her death, minor children can also recover damages for:
- Mental pain and suffering from the date of the decedent’s accident
- Lost parental companionship, instruction and guidance
If the decedent dies and at the time of his death he or she does not have surviving spouse, a child of any age may have a claim for lost instruction, parental companionship and guidance, and for mental pain and suffering from the date of the decedent’s injury. Florida Statute 768.21. But, if the decedent dies due to the carelessness of a medical professional, such as a doctor, children over the age of 25 can’t recover these damages.
Even if someone causes your parent’s accident, and you are entitled to pain and suffering under Florida’s wrongful death act, in order to actually get money the person – or company – that caused your parent’s accident has to have money to pay you.
Most of the time, payment from the person who caused the accident comes from:
- his or her bodily injury liability insurance if the death was caused by a car accident.
- the decedent’s or a resident relative of the decedent’s uninsured/underinsured motorist car insurance policy.
Let’s look an example:
John is 48, Sandra is 35, and Fred is 24. Their father Bill is married to their mother Mary. Bill is killed in a car accident in Miami, Florida when a truck rear-ended Bill’s car. Mary was also in the car, and was badly injured, and died 8 days later due to injuries sustained from the crash.
Because the accident occurred in Miami, which is located in Florida, the Florida Wrongful Death Act applies. If the accident occurred in Ft. Lauderdale, Orlando, or any city in Florida, the Florida Wrongful Death Act still applies.
Bill died at the scene of the accident, and their mother, Mary, died 3 days later. The siblings decide that John is going to be the personal representative, the person who brings the wrongful (accidental) death claim.
Fred may recover damages for mental pain and suffering, and lost parental companionship, instruction and guidance arising from both his mother and his father’s death. This is because Fred is 24 and is therefore considered a “minor child” under Florida’s wrongful death act.
John and Sandra do not have a case to get money for mental pain and suffering, or lost parental companionship, instruction and guidance resulting from their father’s death because they are more than 25 years old and their father was married at the time of his death.
John and Sandra are not considered “minor children” under the Florida wrongful death act. But if Bill was not married at the time of his death, John and Sandra – as adult children – may have a case to get mental pain and suffering, or lost parental companionship, instruction and guidance from the date of the accident forward.
I invite you to learn more about actual settlements (and verdicts) for pain and suffering of a child in a case where a parent is killed in an accident or crime. You can also read about whether a parent has a case if their “minor child is killed in an accident or incident in Florida. You can also read about whether a parent has a case if his or her “adult child” was killed in an accident or incident, including but not limited to a:
- car, truck or motorcycle accident
- ATV accident
- drunk driving accident
- medical malpractice
- nursing home neglect (negligence)
- bicycle (bike) accident
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Editor’s Note: This post was originally published in April 2013 and has been completely revamped and updated.