Surviving Child’s Right to Sue

Wrongful death is defined as the death of an individual caused by the willful or negligent action of another. According to Florida law, when a wrongful death occurs, the decedent’s heirs and/or beneficiaries have the right to seek damages by filing a wrongful death action. Thus, a child who loses a parent as a result of a wrongful death has, in general, the right to sue for loss of parental companionship, instruction, guidance and pain and suffering.

Although Florida law clearly allows for a surviving child of a deceased parent to sue for damages, the Florida Wrongful Death Act places strict restrictions on this right to sue. For example, any surviving child, regardless of age, has the right to recover for lost support and services from the date of the decedent’s injury to the date of their death. Thus, if the parent dies instantly, then the surviving child will not be able to recover anything for lost support and services. But if the parent lives for an extended period of time (within the statute of limitations) following the injury, then the surviving child’s right to recover for lost support and services can be substantial.

The age of the surviving child also plays a large role in determining what is recoverable. When one parent dies but there remains a surviving spouse (not necessarily the surviving child’s biological parent), then children over the age of 25 are barred from recovering financial, known as economic damages. If, however, there is no surviving spouse, then the surviving child – regardless of age – may recover non-economic damages for lost parental companionship, instruction and guidance, along with damages for pain and suffering. It is important to note that a surviving child’s age is determined at the time of the parent’s death, not the time of the incident that caused his or her death.

As if things weren’t already complicated enough, Florida law also states that adult children (i.e., age 25 or older) cannot recover for such non-economic damages as lost parental companionship, instruction, guidance and mental pain and suffering when the wrongful death was caused by medical negligence.

If you are a surviving child it is important that you seek the advice of an experienced Florida wrongful death attorney, who will be able to evaluate your case and determine what damages are available to you. For more information on actions under the Florida Wrongful Death Act, contact the Law Offices of James O. Cunningham, P.A., at 877-FL-INJURY (877-354-6587) for a free initial consultation.