Can You File a Wrongful Death Lawsuit If the Negligent Driver Also Died?

During the first nine months of 2025 there were 1,869 fatal car accidents in Florida, according to figures published by Florida Highway Safety and Motor Vehicles. Many of those accidents were the result of a negligent driver’s actions behind the wheel. That said, many of those killed were also the negligent driver.

This raises a question we often get from clients: Can you file a wrongful death lawsuit if the negligent driver died in the same accident? To give a hypothetical example, say a drunk driver runs through an intersection and crashes into the side of a minivan. Both the drunk driver and the driver and sole occupant of the minivan die on impact. How would this affect a potential wrongful death lawsuit?

Personal Representative vs. Personal Representative

First, let’s establish how wrongful death claims work. Under Florida law, only the personal representative (i.e., executor or administrator) of the victim’s estate can file a wrongful death lawsuit. The personal representative acts on behalf of the victim’s next of kin, typically any surviving spouse or children. The estate may also seek compensation for its own expenses as well as the losses suffered by the victim just before they died.

In a situation where the potential defendant in a wrongful death claim is also deceased, the personal representative of their estate can still be sued. If necessary, a wrongful death plaintiff can even file a petition to have a Florida probate court appoint a personal representative for the deceased driver’s estate if one is not already open. In any case, the personal representative of the negligent driver’s estate becomes the defendant.

Similarly, in a scenario where you sue a negligent driver when they are alive but die while the case is still pending, you can ask the court to “substitute” the personal representative for the now-deceased defendant. This must be done within 90 days after someone, usually the personal representative, files a “suggestion of death” notifying the court of the defendant’s death. The personal representative would then defend the case the same as if the defendant had survived.

Does the Estate Actually Pay a Wrongful Death Judgment?

In the typical wrongful death case arising from a car accident, the negligent driver’s auto insurance carrier is responsible for paying compensation to the victims for their medical bills, loss of income, and other damages. When that insurance is insufficient, the victim’s own insurance policy may step in and pay underinsured motorist coverage to help make up the difference. And if the deceased negligent driver left a sizable probate estate, the victim’s estate may file a creditor claim with the probate court, although it is important to note Florida law prioritizes the payment of most other creditor claims before personal injury judgments.

If you have recently lost a family member due to a negligent driver or third party, our Miami wrongful death lawyers can advise you on the best legal course of action. Contact Pita Weber Del Prado today at 305-670-2889 to schedule a free consultation.

Source:

flhsmv.gov/traffic-crash-reports/crash-dashboard/