In Texas, only the surviving spouse, children, or parents of the person who passed away can file a wrongful death lawsuit. These family members are known as statutory beneficiaries, but other close relatives, like siblings, cannot file.
Families may be able to file a wrongful death claim, a survival action, or both, depending on the circumstances. A wrongful death claim addresses the family’s losses, while a survival action concerns the harm the deceased suffered before death.
A Texas wrongful death attorney can help clarify these legal paths, identify all eligible beneficiaries, preserve key evidence, and build a claim that reflects the full scope of the family’s loss. That support can help a grieving family pursue accountability without carrying every legal burden on their own.
Key Takeaways for Filing a Wrongful Death Lawsuit in Texas
- Texas law limits who can file a wrongful death claim to the deceased's spouse, children, and parents.
- A wrongful death case is different from a survival action, which is filed on behalf of the deceased's estate.
- The general deadline to file for wrongful death is two years from the date of death.
- Compensation can include lost income, loss of companionship, and mental anguish.
- Proof of negligence, or another person's wrongful act, is required to hold them accountable.
Examining the Texas Wrongful Death Act and Its Beneficiaries
The Texas Wrongful Death Act recognizes that a person's death causes distinct harm to their closest family members, and it creates a path for those individuals to seek financial relief for their personal losses. It’s not about punishing a wrongdoer in a criminal sense but about providing civil justice to the family left behind.
Under Texas law, the right to file a wrongful death lawsuit is given only to a select group of people, referred to legally as statutory beneficiaries. For families in Texas, understanding these rules is the first step in seeking accountability.
The following parties may file:
- The Surviving Spouse: The husband or wife of the deceased has a primary right to file a lawsuit.
- The Surviving Children: Biological and legally adopted children can bring a claim. This right extends to all children, regardless of age.
- The Surviving Parents: The mother and father of the deceased also have an independent right to file a wrongful death claim. Adoptive parents also share this right.
These three groups can file the lawsuit individually or together as a group. If none of these eligible individuals files a claim within three months of the death, the personal representative of the deceased’s estate may then file the wrongful death lawsuit on their behalf, unless a beneficiary explicitly asks them not to.
What Is the Difference Between a Wrongful Death Claim and a Survival Action in Texas?
A wrongful death claim compensates the family for their own personal losses due to their loved one's passing, while a survival action compensates the deceased person’s estate for the harm they personally suffered before they died.
Think of it as two separate legal cases that can arise from one tragic event. While both are often handled together, they address different types of harm and benefit different parties.
The Focus of a Wrongful Death Claim
This legal action addresses the direct impact the death had on the surviving family members. The goal is to recover damages for the financial and emotional voids created by the loss.
For example, the surviving spouse and children have lost the income the deceased provided, but they have also lost something intangible and deeply personal.
The recoverable damages in this claim may include:
- Lost Earning Capacity: Compensation can cover the projected salary, wages, and other benefits the deceased would have earned over their expected lifetime.
- Lost Household Services: This covers the value of the tasks the deceased performed around the house, such as childcare, home maintenance, and financial management.
- Loss of Companionship and Society: This compensates the family for the loss of the unique love, comfort, and companionship their loved one provided.
- Mental Anguish: A wrongful death claim can address the emotional pain and suffering the beneficiaries have experienced because of the death.
- Loss of Inheritance: A lawyer can calculate the financial assets the deceased would have likely accumulated and left to the family had they lived a full life.
The Purpose of a Survival Action
A survival action, on the other hand, allows the deceased person’s own personal injury claim to "survive" their death. This claim is brought by the personal representative on behalf of the estate. It seeks compensation for the suffering and losses the deceased endured from the moment of the injury until their passing.
This is about what the victim themselves lost, not the family. Any funds recovered from a survival action go to the estate and are distributed to heirs according to a will or state law.
This is an important tool in the wrongful death claim process, especially when the victim received extensive medical care before passing.
| Wrongful Death Claim | Survival Action | |
| Primary Purpose | Compensates the family for their personal losses resulting from the death | Compensates the deceased person for the pain and suffering they felt before death |
| Who Can File | The surviving spouse, children, or parents | The personal representative or executor of the deceased person’s estate |
| Who Receives Funds | The specific family members named in the claim (spouse, children, parents) | The estate of the deceased, which then pays heirs according to a will or state law |
| Lost Wages | Covers the future income the deceased would have provided to the family | Covers the wages the deceased lost between the time of injury and the time of death |
| Medical Expenses | Does not cover medical costs | Covers the medical bills the deceased person incurred because of the final injury. |
| Pain and Suffering | Focuses on the mental anguish and emotional loss of the surviving family | Focuses on the physical pain and mental stress the deceased felt before passing |
| Statute of Limitations | Generally two years from the date of death | Generally two years from the date of injury |
Proving Negligence in a Texas Wrongful Death Lawsuit
To succeed in a wrongful death lawsuit, your lawyer must prove that your loved one's death was caused by the wrongful act, carelessness, or default of another person or company. This legal standard is known as negligence.
It means showing the at-fault party failed to use reasonable care, and this failure directly led to the fatal incident. A Texas wrongful death lawyer must establish four key elements to prove a case.
Here is what your legal team must prove:
- Duty: The defendant owed the deceased a legal duty to act with a certain level of care. For example, drivers on public roads have a duty to operate their vehicles safely.
- Breach: The defendant breached that duty through their actions or inaction. A driver texting behind the wheel or a doctor at a Fort Worth hospital failing to diagnose a condition are examples of breaches.
- Causation: The defendant's breach was a direct and primary cause of the victim's death. This links the wrongful act to the fatal outcome.
- Damages: The surviving family members suffered legally recognized losses as a result of the death. These are the damages the lawsuit seeks to recover.
Whether the death resulted from car accidents, workplace accidents, defective products, unsafe property (premises liability), or bicycle accidents, these four elements must be clearly established.
How a Texas Wrongful Death Lawyer Supports Your Family
A Texas wrongful death attorney guides families through the complicated legal system while they’re focused on grieving and healing. They handle the procedural requirements and build a strong foundation for the case.
Your lawyer's primary role is to lift the legal burden from your family’s shoulders so you can navigate your collective loss without the added stress of a complex claim.
An attorney's involvement can make it easier for a family to pursue accountability without taking on every procedural and financial issue alone.
A Texas wrongful death lawyer helps in several key ways:
- Conducting a Thorough Investigation: Your lawyer gathers all available evidence, including accident reports, witness statements, medical records, and expert analyses, to establish causation and liability.
- Identifying All Eligible Beneficiaries: They make sure all statutory beneficiaries are properly identified and included in the claim, which is essential for ensuring a fair distribution of any settlement or award.
- Calculating Damages: An attorney can work with financial and life-planning experts to calculate the full extent of the family's pecuniary loss and intangible damages, ensuring nothing is overlooked.
- Managing Communications: Your legal team handles all negotiations with insurance companies, protecting the family from low settlement offers and attempts to minimize their losses.
- Navigating the Court System: If a fair settlement cannot be reached, your attorney can file a wrongful death lawsuit and argue your case before a judge and jury.
FAQ for Filing a Wrongful Death Lawsuit in Texas
Can a Sibling File a Wrongful Death Lawsuit in Texas?
Siblings cannot file a wrongful death lawsuit in Texas. The Texas Wrongful Death Act strictly limits the right to file to the deceased’s surviving spouse, children, and parents.
Siblings, grandparents, or other relatives don’t have legal standing to bring this type of claim, even if they were financially or emotionally dependent on the person who passed away.
Does a Wrongful Death Settlement Get Split Between Family Members?
When a wrongful death settlement is reached, the funds may be divided among the eligible statutory beneficiaries. The distribution is often decided by agreement among the family members or, if they cannot agree, determined by a court.
The court will consider the degree of loss each individual beneficiary suffered when deciding how to apportion the funds.
What if the At-Fault Party Also Died in the Accident?
If the person responsible for the death also died, a wrongful death claim can still proceed. The lawsuit is filed against the at-fault person's estate.
Any compensation would be paid out from their estate or, more commonly, from their applicable insurance policy, such as an auto or homeowners policy.
Can You File a Claim if the Death Was Caused by a Crime?
You can file a civil wrongful death lawsuit in Texas even if the death resulted from a criminal act. The criminal case pursued by the state and the civil claim pursued by the family are two separate legal proceedings with different goals.
The criminal case seeks to punish the offender, while the civil case seeks to compensate the family for their losses.
What Happens if Our Family Disagrees on Filing a Wrongful Death Lawsuit?
If family members disagree, Texas law still allows a spouse, child, or parent to move forward with a wrongful death claim on behalf of all eligible beneficiaries. In practice, though, these situations can become complicated because the case may affect everyone’s financial interests and relationships.
A lawyer can help explain each person’s rights, manage communication between family members, and help reduce conflict while the claim moves forward. Even if not everyone participates, eligible beneficiaries may still have a right to share in any recovery.
Talk to a Dallas Wrongful Death Attorney Today
If you lost a family member because of someone else's negligence, understanding your rights is the first step toward seeking justice. The Law Firm of Aaron A. Herbert, P.C. helps families navigate the complexities of the Texas legal system with compassion and resolve.
Contact us at (214) 200-4878 or fill out our online form to discuss your case with our dedicated team.
Aaron A. Herbert
Founding Attorney
Aaron A. Herbert is a Texas attorney, Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization.
For over a decade he has shown an unwavering commitment to clients who were seriously injured by major accidents and industrial catastrophes. During that time he has earned the reputation as one of America’s most aggressive trial lawyers by achieving noteworthy recoveries from judges and juries, as well as substantial settlements prior to trial, the majority of which contained negotiated confidentiality agreements at the request of the defense. When asked about these cases, Mr. Herbert has said that each case not only justified the recovery level, but that no one would trade places with any one of these victims in return for any amount of money, once they know the facts and severity of the injuries and tragedy involved. According to Mr. Herbert, “there can be no substitute for passion, preparation and persistence in the practice of law”. He is known not only for this tenacious preparation, but also for his imagination in the courtroom. He is passionate and persistent in seeking to obtain the maximum case value for each individual client at trial or through settlement, while reducing the stress of litigation on his clients. Born and raised in Dallas, Texas, Mr. Herbert enlisted in the United States Marine Corps after high school and later received an Honorable Discharge. After the Marines, he obtained a Bachelor of Science in Criminal Justice from Texas A&M University, then a Juris Doctorate from the University of Oklahoma College of Law. There he graduated in the top of his class and became an eternal Sooners Football fan. Aaron has worked as a zealous advocate for injured clients at several boutique personal injury litigation firms where he amassed numerous jury verdicts. After spending a year as the top earning litigation attorney at a firm that frequently tops verdict search as one with the highest number of trial wins in Texas, Aaron accepted a position as a the managing pre-litigation attorney at another Dallas personal injury firm. Over the next seven years he transitioned to the managing litigation attorney, and that firm grew to one of the largest personal injury firms in Dallas. In 2010 he formed the Law Firm of Aaron A. Herbert, to get back to a focus on developing each individual case and maximizing case value for each client. Mr. Herbert practices law with the belief that a well taken care of, highly engaged and motivated team of employees working in a cooperative team environment will result in superior representation and great results for the firm clients. He believes in always setting a goal of achieving the best possible results for each and every client.
Education
Texas A&M University (B.S. Criminal Justice, 1999)
University of Oklahoma College of Law (J.D., 2002)
Professional Associations
Licensed to practice in Texas (2002)
Board Certified in Personal Injury Trial Law – Texas Board of Legal Specialization (2008)
Member
State Bar of Texas
American Bar Association
American Trial Lawyer Association
Texas Trial Lawyers Association
Dallas Trial Lawyers Association
Dallas County Bar Association
Tarrant County Bar Association
Million Dollar Advocates Forum
Nation Trial Lawyers – Top 100 Trial Lawyers
Publications
Litigating Dog Bite Cases, Texas Dog Law Seminar, Dallas 2009