Detailed Answer
Short answer: Under Florida law, wrongful death proceeds generally do not pass according to the decedent’s Last Will and Testament. Instead, wrongful death recoveries are distributed to the decedent’s statutory survivors under Florida’s Wrongful Death Act. A separate cause of action called a “survival” claim (for harms the decedent suffered before death) is part of the decedent’s estate and can pass under the Will or by intestacy.
How Florida law treats wrongful death money
Florida has a statutory wrongful death scheme (Chapter 768 of the Florida Statutes). Wrongful death actions are brought for the benefit of certain survivors (for example, a surviving spouse, children, and/or parents) and the damages awarded are allocated to those survivors under the statute rather than becoming a general asset of the decedent’s probate estate. See Florida’s Wrongful Death Act: Chapter 768, Florida Statutes.
Survival claims vs. wrongful death claims — why the distinction matters
It helps to separate two different claims that can arise when a person dies because of someone else’s conduct:
- Wrongful death claim: This claim compensates the decedent’s survivors for their losses (loss of support, loss of companionship, mental pain and suffering of survivors, etc.). Wrongful death proceeds are generally distributed to the statutory beneficiaries identified by Florida law, not under the decedent’s Will.
- Survival claim: This claim (sometimes called a claim for the decedent’s own damages) covers harms the decedent personally suffered before death—such as pain and suffering, lost earnings up to the moment of death, and medical expenses incurred prior to death. Survival damages are typically assets of the decedent’s estate and therefore pass according to the Will or, if there is no valid Will, by intestate succession under Florida’s probate statutes (see Chapter 732: Chapter 732, Florida Statutes).
Practical examples
– If a decedent with a valid Will is survived by a spouse and children, and the family recovers $1,000,000 in a wrongful death settlement, that money will typically be apportioned to the surviving spouse and children according to the Wrongful Death Act—not left to be distributed by the decedent’s Will.
– If the estate also recovers $200,000 for the decedent’s pre-death pain and suffering (a survival claim), that $200,000 becomes part of the probate estate and is distributed under the Will or by intestacy rules.
Who brings the claim and how distribution is set
Usually the personal representative or the survivors themselves initiate the wrongful death suit. The statute specifies who may recover and how damages are distributed among eligible survivors; a court or the parties’ settlement agreement will implement that allocation. For the precise language and recoverable elements, consult Chapter 768 of the Florida Statutes: Florida Wrongful Death Act (Ch. 768).
Time limits and practical steps
Wrongful death and survival claims have deadlines (statutes of limitations). In Florida, wrongful death and related civil claims are subject to strict time limits; if you suspect a wrongful death or survival claim, act promptly to preserve rights. See the general limitations chapter: Chapter 95, Florida Statutes (limitations).
Bottom line: If you are asking whether a decedent’s Will controls who receives wrongful death money — usually the answer is no. Wrongful death proceeds are allocated to statutory survivors by operation of the Wrongful Death Act. Survival action proceeds, by contrast, are estate assets and do pass under the Will or by intestacy.
This summary is educational only and not legal advice. Consult a Florida civil litigation or probate attorney to evaluate specific facts and to protect rights and deadlines.
Helpful Hints
- Distinguish wrongful death vs. survival claims — they follow different distribution rules.
- Contact a Florida attorney early; statutes of limitations can bar claims if you wait too long (see Chapter 95, Florida Statutes).
- Locate the personal representative or executor of the estate; that person often coordinates filing suits, settlement, and distribution.
- Gather proof of relationships (marriage certificate, birth certificates) so statutory beneficiaries can be identified and shares allocated.
- Be aware that settlements often require court approval or written agreements that specify shares to survivors.
- If survivors are minors, the court may require that settlement funds be protected (guardian, trust, or court supervision).
- Ask whether the recovery represents wrongful death damages, survival damages, or both; tax and probate consequences can differ.
- Keep detailed records of medical bills, lost wages, funeral expenses, and financial support the decedent provided; these items can affect damages and distribution.
- Consult authoritative statutes: Florida Wrongful Death Act (Chapter 768) and Florida probate/intestate rules (Chapter 732) for statutory language: Ch. 768, Ch. 732.
Disclaimer: This article explains general principles of Florida law and is for educational purposes only. It does not constitute legal advice. For advice about a specific situation, consult a licensed Florida attorney.