“Let the Love Flow – the Wrongful Death Statute in Florida” by Bruce M. Kleinberg, M.D., J.D.
“What do you mean we have no case for Wrongful Death because I am over 25 years old, and my Mom and Dad were married at the time of his death?” Tragically, in my 26 years of practicing personal injury law I have heard this phrase way too many times. So, you think I’m crazy? You think “no way” can this be true in the state of Florida? Does the love for your father dramatically change between the ages of 24 years 11 months 30 days 23 hours 59 minutes to age 25? Well, if you think like the legislature of the State of Florida apparently it does.
The Wrongful Death Statute that is included in chapter 768 of the Florida Statutes defines those survivors who are eligible to collect damages for pain and suffering in the event of a wrongful death. Specifically, section 768.21(3), states, in part, that minor children can recover damages for pain and suffering in a wrongful death action if there is a surviving spouse but, cannot collect pain and suffering damages if there is a surviving spouse but they are over the age of 25 (“minor children” is defined in Florida Statute 768.18(2) ).
So, let’s take two scenarios to illustrate the affects of this statute. In scenario one, a father and husband is tragically killed on the road due to the negligence of another driver. At the time of his death, he had a 26 year old son and a 24 year old daughter. He was married at the time of his death. Even though both his son and his daughter loved him equally, under the Florida Wrongful Death Statute, his son would have no claim for pain and suffering damages while his daughter and wife would.
Using the same scenario, if the father died but was not married at the time of his death, then both his 26 are old son and his 24 year old daughter would be entitled to make claims for pain and suffering damages. In fact, if the father died as an unmarried person, all of his children regardless of age would be entitled to make claims for pain and suffering damages.
Is this insane or what? Who came up with this idiotic statute? Does anyone really think that the love of a child for a parent changes dramatically between the ages of 24 and 25? Does anyone really think that the love for a parent changes because dear old dad is married at the time of his death verses single? Should the negligent driver who created such a tragedy be able to breathe a sigh of relief because he happened to kill someone who was married with children all over the age of 25 verses someone who was un- married with children over the age of 25?
In conclusion, I am reminded of one of the questions that I ask potential jurors when I am picking a jury; namely, “if you were in charge and could change the law what changes would you make?” I hope that someday someone will raise their hand and say, “I would change the wrongful death statute so that all survivors can make claims against negligent people regardless of their ages or the marital status of the deceased person at the time of their death”. So may it be.