When initiating a wrongful death cause of action, an experienced wrongful death attorney should first open the decedent's estate in probate court and appoint a personal representative. The personal representative may institute the wrongful death action on behalf of the survivors of the decedent, if the incident that caused the death would have been a sustainable cause of action to recover damages by the decedent.

A wrongful death attorney can determine if a cause of action has accrued under Florida's Wrongful Death Act. Under the Wrongful Death Act, the decedent's cause of action for personal injury is not sustainable, but it creates an action for the surviving beneficiaries for damages that they have sustained due to the death. However, a West Palm Beach wrongful death attorney should advise you that if a decedent had no valid cause of action to recover damages at the time of death, neither do the surviving beneficiaries.

In Florida, a wrongful death claim can arise from conduct that amounts to a wrongful act, negligence, default, or breach of contract or warranty. If your wrongful death claim is based on negligence, your wrongful death attorney should allege and prove the elements of negligence. However, both causes of action are not sustainable at the same time since the purpose of a wrongful death action is to recover for the survivors of the decedent and not the decedent himself/herself. For example, upon the decedent's death, his/her claim for pain and suffering is eliminated. However, the survivors may claim damages for their pain and suffering due to the decedent's death. Therefore, you should consult an experienced West Palm Beach wrongful death attorney to determine your appropriate claims.