Jeffrey P. Gale, P.A. // Florida’s “Free Kill” Law: A Legal Loophole That Still Denies Grieving Families Justice

Since 1990, Florida has enforced a statute commonly referred to as the “Free Kill” law. Codified at Section 768.21(8) of the Florida Wrongful Death Act, this provision creates a glaring exception in an otherwise remedial framework intended to support grieving families.

The legislative intent behind the Wrongful Death Act, as stated in Section 768.17, is clear:

“It is the public policy of the state to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer.”

From car crashes and construction accidents to defective products and medical malpractice, wrongful death claims arise in countless tragic ways. When negligence causes a death, Florida law generally allows surviving family members to recover damages — including for mental pain and suffering, often the most devastating aspect of such a loss.

But Section 768.21(8) carves out a critical exception: If the death is caused by medical negligence, parents of adult children (defined under Section 768.18(2) as those age 25 or older) and adult children of deceased parents are barred from recovering non-economic damages — no compensation for grief, anguish, or loss of companionship.

Yes, you read that correctly. If a doctor’s negligence kills your elderly parent or your adult child, Florida law says you’re entitled to nothing for your emotional loss. That’s why Section 768.21(8) has earned the nickname: “The Free Kill Law.”

The Insurance Myth

Proponents of the law claim it helps keep medical malpractice insurance rates down. But studies have not substantiated those claims. In fact, in McCall v. United States, 134 So. 3d 894 (Fla. 2014), the Florida Supreme Court struck down arbitrary damage caps in medical malpractice cases, finding they violated equal protection. The Court specifically rejected the idea that such caps meaningfully reduce insurance premiums or promote physician retention.

A Repeal Effort Thwarted — Again

Over the years, bipartisan efforts to repeal the “Free Kill” law have steadily gained traction. During the 2024 legislative session, lawmakers introduced multiple bills to eliminate the unjust provision. Some were clean, straightforward repeal proposals. Unfortunately, opposition — fueled by powerful healthcare and insurance industry lobbyists — once again derailed reform.

One high-profile example: SB 248, sponsored by Sen. Corey Yarborough (R), sought to repeal Section 768.21(8), but only if unconstitutional damage caps (struck down in McCall) were reinstated. That bill failed, but not before it distracted from genuine repeal efforts — yet another missed opportunity.

Then, in the 2025 legislative session, both the House and Senate passed a full repeal of the Free Kill law by veto-proof majorities. But Governor Ron DeSantis vetoed the bill. Despite having the votes to override the veto, Republican legislators declined to act.

The result? The law remains intact. Some believe this was a calculated move — allowing lawmakers to appear supportive of repeal while ensuring the law stayed in place, placating key political donors. With Governor DeSantis term-limited, his veto came at little political cost.

Real Families, Real Grief

At our firm, not a week goes by without a call from someone devastated by this law — most often adult children grieving the preventable loss of a parent due to medical error. For many, we are not the first law office to deliver the heartbreaking news: Florida law offers them no remedy.

It’s a painful conversation every time. We encourage callers to reach out to their elected officials and demand change. Most say they will. Whether lawmakers will finally listen remains to be seen.

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Bottom Line: Until Florida repeals the “Free Kill” law, the state’s legal system will continue to deny justice to countless families — especially those who lose elderly parents to preventable medical negligence. The fight isn’t over, but the time for action is long overdue.

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