The difference between a survival action and a wrongful death claim depends on whose losses the lawsuit seeks to recover.
A wrongful death claim under Florida's Wrongful Death Act (§§ 768.16–768.26) compensates the surviving family members for their own losses, such as lost companionship, support, and mental pain and suffering.
A survival action under Florida's Survival Statute (§ 46.021) compensates the deceased resident's estate for the pain, suffering, and losses the resident experienced between the time of injury and the time of death. A wrongful death attorney familiar with Florida's care facility laws can help families understand which path may lead to the strongest recovery.
When a loved one dies due to neglect or abuse in a West Palm Beach area care facility, such as Brookdale or Sinceri Senior Living, the legal options available to the family depend on several factors: whether the death was caused by negligence, who the surviving family members are, and which statutory framework applies.
The Bottom Line on Wrongful Death and Survival Actions in Florida Care Facility Cases
- Wrongful death compensates the survivors; survival compensates the estate: The two paths recover different categories of damages for different parties, and the distinction affects who receives the recovery.
- In nursing home cases, families must elect one path: Under Florida Statute § 400.023, when a resident's death was caused by negligence or a rights violation, the personal representative must choose either survival damages or wrongful death damages, not both.
- Adult children have broader rights in Chapter 400 cases: The Wrongful Death Act's § 768.21(8) limitation, which bars adult children from recovering pain and suffering damages in medical malpractice cases, does not apply to nursing home claims under Chapter 400.
How Florida's Wrongful Death Act Works in Care Facility Cases
The Wrongful Death Act provides a right of action when a person's death is caused by the wrongful act, negligence, or default of another. In care facility cases, this means the facility's negligence or violation of the resident's rights must have been a cause of the resident's death.
Who Brings the Claim
Only the personal representative of the decedent's estate may file a wrongful death lawsuit. This is typically a family member appointed by the court, though any qualified individual may serve in this role. The complaint must identify all potential beneficiaries by name and describe their relationship to the deceased.
Who Receives the Damages
Wrongful death damages flow to the surviving family members, not to the estate (with some exceptions). The beneficiary structure under § 768.21 follows a hierarchy.
- Surviving spouse: May recover for lost support and services, lost companionship, and mental pain and suffering.
- Minor children: May recover for lost parental companionship, instruction, guidance, and mental pain and suffering.
- Adult children (if no surviving spouse): May recover for lost parental companionship, instruction, guidance, and mental pain and suffering.
- Parents of a deceased minor child: May recover for mental pain and suffering.
- Parents of a deceased adult child (if no other survivors): May recover for mental pain and suffering.
The estate may also recover the decedent's lost earnings from the date of injury to the date of death, future net accumulations, and medical or funeral expenses.
The Adult Child Exception in Nursing Home Cases
Under the general Wrongful Death Act, § 768.21(8) prevents adult children from recovering pain and suffering damages in medical malpractice wrongful death cases. This limitation has left many families with no legal remedy when an elderly parent with no surviving spouse dies due to medical negligence.
However, Florida Statute § 400.023(1) expressly states that "the provisions of s. 768.21(8) do not apply to a claim alleging death of the resident." This means adult children of nursing home residents who die from negligence or rights violations may recover companionship and pain and suffering damages that would be barred in a standard medical malpractice case. Our Okeechobee wrongful death law firm views this as one of the most significant protections in Florida's nursing home litigation framework.
How Florida's Survival Statute Works in Care Facility Cases
The Survival Statute operates on a fundamentally different principle. Rather than compensating the family for their losses, it preserves the claim that the resident could have brought if they had lived.
What the Survival Statute Preserves
Under § 46.021, no cause of action dies with the person. The estate may pursue damages for the resident's own losses from the date of injury until the date of death. In nursing home cases, that often includes the resident's conscious pain and suffering, loss of enjoyment of life, and other noneconomic damages experienced during the period of neglect or abuse.
When a Survival Action Applies
A survival action is particularly relevant in two situations within the care facility context.
First, when the resident's death was caused by something unrelated to the negligence. If a resident suffered neglect that caused injuries but later died of an unrelated medical condition, the Wrongful Death Act may not apply because the negligence did not cause the death. The Survival Statute preserves the personal injury claim so the estate may still recover for the harm the resident endured.
Second, when the period of suffering before death is significant. In cases involving prolonged neglect, such as months of worsening bedsores, malnutrition, or untreated infections, the survival action may capture the full scope of the resident's pain and suffering during that period. Our Plantation wrongful death law firm has handled cases where the resident's documented suffering over weeks or months formed the core of the claim's value.
Who Receives the Damages
Survival action damages go to the decedent's estate and are distributed according to the estate plan or Florida's intestacy laws. Unlike wrongful death damages, which flow directly to the surviving family members, survival recoveries pass through the probate process and may be subject to the claims of creditors.
How the Cause of Death Affects the Legal Path
The relationship between the resident's injury and the cause of death is the central question in determining which statutory path applies.
When the Negligence Caused the Death
If the facility's neglect or abuse directly caused or substantially contributed to the resident's death, the Wrongful Death Act applies. In this scenario, the personal representative must elect between survival and wrongful death damages under § 400.023.
A resident who develops severe bedsores due to inadequate care, contracts a systemic infection from those wounds, and dies from sepsis presents a case where the negligence and the death are directly connected. Our West Palm Beach wrongful death attorneys work with medical professionals to establish that causal link, which is often the most contested element of the case.
When the Death Was Unrelated
If the resident died from causes unrelated to the facility's negligence, the Wrongful Death Act does not apply, but the Survival Statute preserves the personal injury claim. The estate may still recover for the harm the resident suffered while alive.
This distinction matters because many nursing home residents are elderly and medically fragile. A resident may experience months of neglect and then pass away from a pre-existing cardiac condition. In that scenario, the negligence claim survives through § 46.021 even though the death was not caused by the facility's actions.
Damages Available Under Each Path
Understanding what each statutory path allows in terms of compensation helps families and their attorneys make a more informed election.
Wrongful Death Damages Under § 768.21
- For survivors: Lost support and services, lost companionship, and mental pain and suffering (subject to the beneficiary hierarchy described above).
- For the estate: Lost earnings from injury to death, future net accumulations, and medical or funeral expenses.
Survival Damages Under § 46.021
- For the estate: The resident's pain and suffering from the date of injury to the date of death, loss of enjoyment of life, and other damages the resident could have recovered if they had survived.
Punitive Damages Under Chapter 400
Both wrongful death and survival actions brought under Chapter 400 may include a claim for punitive damages if the evidence supports it. Punitive damages are intended to punish particularly egregious conduct and deter similar behavior. Under § 400.0237, a claim for punitive damages in a nursing home case requires a showing of evidence that provides a reasonable basis for recovery.
Filing Deadlines and the Statute of Limitations
Time limits apply to both wrongful death and survival actions, and the deadlines are not identical.
Wrongful Death
Florida's Wrongful Death Act imposes a two-year statute of limitations from the date of death. This is a firm deadline, and missing it may permanently bar the claim.
Survival Action
The survival action follows the statute of limitations applicable to the underlying personal injury claim, which in most nursing home cases is also two years from the date of injury or discovery.
The 75-Day Presuit Requirement
Both types of claims arising from nursing home negligence must comply with the 75-day presuit notice requirement under § 400.0233. That presuit period runs within the statute of limitations, making it critical to begin the process well before the deadline approaches. Our team initiates the presuit process as early as possible to preserve every available option.
Ask Frankl Kominsky Injury Lawyers About Wrongful Death and Survival Actions in Florida Care Facility Cases
Can a family pursue both a survival action and a wrongful death claim at the same time?
Not in nursing home cases where the death resulted from the negligence. Under § 400.023, the personal representative must elect one path or the other. However, if the cause of death is disputed, both claims may be filed initially and the election may be made once the medical evidence clarifies whether the death was caused by the facility's conduct. A Daytona Beach wrongful death law firm can help guide you through this process.
What if the resident had no surviving spouse or minor children?
Adult children may still bring a wrongful death claim under Chapter 400 and recover damages for lost companionship and mental pain and suffering. The § 768.21(8) bar on adult children's damages in medical malpractice cases does not apply to nursing home claims. This is a critical distinction that affects many South Florida families.
Who decides whether to elect survival or wrongful death damages?
The personal representative of the estate, typically in consultation with the family's attorney, makes the election. Because the decision affects which damages are recoverable and who receives them, it requires a careful analysis of the facts, the family structure, and the available evidence.
Does a care facility's type affect which statute applies?
The election requirement under § 400.023 applies specifically to nursing home claims under Chapter 400. Assisted living facilities are governed by a parallel statute under Chapter 429. Other care settings may fall under the general Wrongful Death Act and medical malpractice framework. An attorney can determine which statutory framework applies based on the type of facility and the nature of the claim.
Are wrongful death settlements in nursing home cases taxable?
Wrongful death settlements in Florida are generally not subject to federal income tax when they compensate for physical injuries or physical sickness. However, portions allocated to punitive damages or interest may be taxable. Families should consult a tax professional regarding the specific tax implications of any settlement or verdict.
The Election That Cannot Be Undone
Choosing between a survival action and a wrongful death claim is not a decision that can be revisited. Once the election is made under § 400.023, it defines what the family may recover and how those damages are distributed. For families still processing the loss of a parent or grandparent in a West Palm Beach area care facility, the pressure of that decision can feel relentless.
But it does not need to be made alone. What would it mean to have a Pembroke Pines wrongful death law firm walking through this decision with your family, weighing the evidence, analyzing the family structure, and identifying the path most likely to hold the facility accountable?
Frankl Kominsky Injury Lawyers is available 24/7 to discuss wrongful death and survival claims involving care facilities across South Florida.
Call our Boynton Beach office at (561) 800-8000 for a free consultation in English, Spanish, or Creole.
