When someone you care about has passed away because of another’s negligence, the emotional and legal questions can feel overwhelming. Many families assume that only a wrongful death claim is an option, but in Florida, there is another path: a survival action. Let’s walk through it together in plain language so you can understand how the process works and when it may benefit you.

What a Survival Action Is Under Florida Law

In Florida, a “survival action” is a lawsuit filed by the estate of a person who was injured and later died, to recover damages that the deceased could have pursued had they lived. The key statute is Florida Statute §46.021, which states: “No cause of action dies with the person. All causes of action survive and may be commenced, prosecuted and defended in the name of the person prescribed by law.”

This means that the decedent’s personal representative may step into the shoes of the deceased and pursue the claim for harms the deceased experienced before death.

How a Survival Action Differs From a Wrongful Death Claim in Florida

Understanding the difference between a survival action and a wrongful death claim is critical.

Survival Action: Florida

Focuses on what the deceased person suffered prior to death, such as medical bills, lost income, and pain and suffering. The recovery belongs to the deceased’s estate, not to the family directly.

Wrongful Death Claim: Florida

Addresses what surviving family members lost because of the death, including lost support, companionship, and services. This claim is brought under Florida Statute §768.21.

Key distinctions include:

• Who brings the claim? The personal representative of the decedent’s estate for a survival action; the personal representative on behalf of survivors for wrongful death.
  
• Who benefits from recovery? In a survival action, the estate; in wrongful death, the survivors.
  
• What types of damages? For a survival action: what the decedent could have claimed if alive. For wrongful death: what survivors lost.
  
• Timing and legal strategy differ accordingly.
  

Why a Survival Action May Be Appropriate in Florida

In many tragic cases, both types of claims might apply. For instance, if someone is seriously injured in an accident, endures medical treatment, pain, and wage loss, and then dies, the estate may pursue a survival action for the deceased’s suffering and pre-death losses, while the survivors pursue a wrongful death claim for their own losses. Proper planning ensures no recoverable category is overlooked.

Steps to File a Survival Action Claim in Florida

Here is a practical step-by-step guide to filing a survival action claim in Florida:

1. Ensure the estate is opened and a personal representative is appointed. Only the personal representative (administrator or executor) may bring the survival action under Florida law. See Florida Statutes Chapter 733.
   
2. Confirm the cause of action is a viable surviving claim. Under the survival statute, the cause of action must have been one the decedent could have brought before death. Florida Statute §768.20 provides that when a personal injury results in death, those causes of action do not survive as such; instead, the wrongful death statute governs.
   
3. Gather evidence of damages suffered by the deceased prior to death. This includes medical bills, hospital records, lost wages, pain and suffering, and diminished enjoyment of life before death.
   
4. Check and comply with limitation periods. Survival claims generally follow the personal injury statute of limitations (four years) or are subject to probate tolling rules under Florida Statute §733.104, which allows action within the longer of the original limitation or 12 months after death.
   
5. File the lawsuit on behalf of the estate. The claim is titled in the estate’s name (for example, “Estate of John Doe, deceased, by and through personal representative”) and should allege the duty, breach, injury, death, and pre-death damages.
   
6. Coordinate with any wrongful death filing. If the same wrongful act caused death, coordination between the two claims prevents overlap and strengthens recovery potential.
   
7. Understand distribution of recovery. Recovery in a survival action becomes part of the estate and is distributed according to the will or Florida’s intestate succession laws.
   
8. Prepare for negotiation or trial. Insurance carriers often assess whether the claim is survival, wrongful death, or both, and adjust strategy accordingly.

Things to Consider: Specific to Florida

When the Survival Action Is Viable

Consider a case where a person is severely injured in a premises liability accident, endures 18 months of hospital care, loses significant income, and then passes away. A survival action would allow the estate to seek compensation for that 18-month period of suffering, medical bills, wage loss, and diminished quality of life.

When the Survival Action May Not Apply

If the person died almost immediately and there was little time between injury and death, the claim may be more appropriately framed as wrongful death. Because Florida Statute §768.20 limits the survival of personal injury actions that result in death, the survival statute may not apply to the exact injury that caused death.

Statute of Limitations Alert

Florida Statute 95.11 generally sets a two-year deadline for wrongful death actions.
Survival actions can follow personal injury deadlines (also two years) or probate tolling under §733.104. Missing deadlines may permanently bar the claim.

Common Pitfalls to Avoid

• Estate not opened or personal representative not appointed.
  
• Failing to allege decedent’s damages rather than survivors’ damages.
  
• Confusing survival action with wrongful death and filing incorrectly.
  
• Missing statute of limitations or substitution deadlines (Florida Rule 1.210, 90-day rule).
  
• Lack of coordination with wrongful death counsel.
  
• Incomplete documentation of decedent’s pain, suffering, or wage loss.
  

Essential Steps for the Estate Representative

1. Determine whether the cause of action survives under §46.021 and §768.20.
   
2. Open the decedent’s estate and secure appointment under Chapter 733.
   
3. Gather medical, wage, and testimonial evidence of pre-death damages.
   
4. File within the correct limitations period and ensure proper substitution under Rule 1.210.
   
5. Coordinate legal strategies between survival and wrongful death actions to maximize recovery.
   

Statistics on Florida Survival and Wrongful Death Claims

According to Florida’s Office of the State Courts Administrator, more than 6,500 wrongful death and related estate cases are filed statewide each year. The majority arise from motor vehicle and medical negligence claims, where delayed death makes survival actions possible. In these hybrid cases, average settlements exceed $500,000 depending on severity, timing, and documentation quality.

Need Legal Help? Brandon J. Broderick, Attorney at Law is One Phone Call Away

If you are navigating the aftermath of a loved one’s death caused by negligence in Florida, you need a lawyer who understands both survival actions and wrongful death claims. Brandon J. Broderick, Attorney at Law represents families and estate representatives throughout Florida, helping them recover damages for medical expenses, lost income, and pain endured before death. Our team ensures deadlines are met, statutes properly applied, and claims pursued with compassion and skill. Justice for your loved one begins with a single conversation. Contact us today!