Texas families may be able to pursue both a wrongful death claim and a survival action at the same time under state law. These claims serve different purposes: A wrongful death claim addresses the family’s losses, while a survival action addresses the harm the deceased suffered before death.
A hospital invoice and a record of household support belong in different parts of the case. The invoice concerns care provided to the injured person. The support record concerns what a survivor has lost. Keep both, and ask the lawyer where each fits. Two claims do not allow payment twice for one loss.
Bring any estate papers, incident reports and insurance correspondence to the first legal consultation. Ask who will represent the family members and who has authority to act for the estate. Those may be different people.
Key Takeaways for Wrongful Death and Survival Action
- Texas law allows families to file both a wrongful death and a survival action at the same time.
- A wrongful death lawsuit compensates surviving family members for their own losses, such as lost companionship and financial support.
- A survival lawsuit compensates the decedent’s estate for the physical pain, medical expenses, and suffering the decedent experienced before passing.
- Statutory beneficiaries are the surviving spouse, children and parents. An executor or administrator may also bring the action for their benefit under the rule explained below.
- The personal representative of the estate usually files a survival claim.
What Is the Difference Between a Wrongful Death Claim and a Survival Action in Texas?
The two claims can arise from the same event without covering the same losses. A hospital record may help prove both how a fatal injury occurred and what the patient experienced before death. It does not establish how much financial support a particular family member lost. That requires different evidence.
A wrongful death claim belongs to the surviving spouse, children, and parents. It allows them to seek compensation for losses tied to the death, such as lost income, lost companionship, and mental anguish.
A survival action is different because it belongs to the estate, not the family members individually. It covers the personal injury claim the deceased could have brought if they had survived, including conscious pain and suffering, medical expenses, and other losses between the injury and death.
If someone was badly hurt in a crash on the Dallas North Tollway and later died after treatment at Baylor University Medical Center, a survival action may seek compensation for those injuries and related losses.
| Wrongful Death Claim | Survival Action | |
| Who Does the Claim Help? | The surviving family | The deceased’s estate |
| Who Brings the Claim? | Spouse, children or parents; an executor or administrator may act for their benefit under Section 71.004 | Usually the estate representative; heirs may proceed in limited circumstances |
| What the Claim Covers | The family’s losses after the death | The deceased’s losses before death |
| Common Damages | Lost support, companionship, and mental anguish | Medical bills, pain and suffering, lost wages |
| Who Receives the Money? | Eligible family members | The estate, with valid obligations and administration addressed before distribution |
| Main Purpose | Compensate the family | Continue the deceased’s injury claim |
Who Is Eligible To File a Wrongful Death Claim in Texas?
The spouse, children and parents are the statutory beneficiaries under the Texas Wrongful Death Act. One or more may sue for the benefit of all. The executor or administrator has a separate role when the family has not filed within three calendar months.
If none of the eligible surviving spouse, children, or parents begins an action within three calendar months after the death, the deceased’s executor or administrator must bring and prosecute the action for their benefit unless all of those eligible individuals request otherwise.
Eligible parties include:
- Surviving Spouse: The legally married husband or wife of the deceased at the time of their death.
- Surviving Children: This includes biological and legally adopted children, regardless of their age.
- Surviving Parents: The law includes both biological and adoptive parents.
Siblings, grandparents and unmarried partners are not wrongful death beneficiaries merely because of those relationships. A grandparent who legally adopted the deceased has a parent’s status. A relative may also serve as estate representative without becoming a beneficiary. When deciding who may file a wrongful death claim, counsel should distinguish that representative role from a claim for the relative’s own loss.
What Damages Are Available in a Wrongful Death Lawsuit in Dallas?
A family member’s losses need individual attention. One person may have relied on regular financial contributions; another may have lost daily care and companionship. Evidence of those relationships helps explain the claim. The categories below are possible losses to investigate, not amounts awarded automatically in every case.
Damages in a wrongful death claim may include:
- Lost Earning Capacity and Financial Support: How much of the deceased’s pay supported this family member? Gather wage and benefit records, then identify the contributions made toward rent, groceries and other expenses. Future support must be estimated from the evidence. Adding up every possible future paycheck can overstate what a beneficiary would have received.
- Loss of Inheritance: The question is what assets probably would have accumulated and passed to the beneficiary. Savings, likely earnings, spending and life expectancy affect that estimate. It requires more than an assumption that all future wages would have been saved.
- Loss of Services: List the work the deceased actually did: taking children to school, preparing meals, repairing the home or handling household finances, for example. Identify how often it was done and what replacing it would reasonably cost.
- Loss of Companionship and Guidance: Family and friends can describe the relationship that was lost: shared routines, advice, care, comfort and time together. Concrete accounts help explain a loss that a wage statement cannot capture.
- Mental Anguish: This covers the emotional pain and suffering surviving family members experience because of the loss.
The value of these damages depends on the facts of the family’s relationship, the deceased’s role in the household, and the evidence showing how the death changed the survivors’ lives.
What Is the Purpose of a Survival Action in Texas?
Death does not erase an existing personal injury claim. A survival action allows that claim to continue. For a fatal injury, the records should show what happened between injury and death: treatment, time away from work, and any conscious pain or distress. Even a short interval calls for careful attention to what the witnesses and medical records actually establish.
The settlement check and the final family distribution may be different amounts. A survival recovery goes into the estate process, where administration and valid obligations must be addressed. Ask the representative or estate lawyer to explain the proposed accounting and who is entitled to the remaining funds.
Common damages recovered through a successful survival action include:
- Medical Expenses: The estate may seek legally recoverable medical expenses caused by the injury. Recovery is limited to amounts actually paid or incurred under Texas law; every amount shown on a bill is not automatically recoverable.
- Conscious Pain and Suffering: This compensation is for the physical pain the decedent endured before they died. This requires evidence showing they were conscious and aware of their suffering.
- Mental Anguish: These damages address the fear, emotional distress, and terror the decedent experienced before their death.
- Lost Wages: A survival action can recover income the decedent lost between their injury and death.
- Funeral and Burial Costs: Reasonable funeral and burial expenses may be recoverable. Counsel should document who incurred them and place the loss in the proper claim without seeking payment twice.
Exemplary damages, also called punitive damages, require more than proof of ordinary negligence. Texas Chapter 41 generally requires clear and convincing evidence of fraud, malice or gross negligence, subject to its specific rules and limits. Whether such a claim is available needs separate analysis.
What Is the Statute of Limitations for a Wrongful Death Claim in Texas?
The statute of limitations for filing a wrongful death claim in Texas is generally two years from the date of the person's death. Missing the applicable deadline can bar the claim. Ask counsel to identify the deadline for each claimant and claim; do not assume the wrongful death deadline also governs the estate’s survival claim.
Some rules can suspend or extend a limitations period, including rules concerning minority in appropriate cases. Their application depends on the claim. Give counsel the injury date, death date, claimant ages and any estate appointment dates so the calculation can be checked. Do not wait for an assumed extension.
Preserving video, locating witnesses and obtaining medical records should begin promptly. Some evidence may disappear long before a limitations deadline. Governmental claims and health care liability claims may also have special notice or procedural requirements.
How a Lawyer Helps With a Wrongful Death and Survival Action
Before the first meeting, write down the surviving spouse’s, children’s and parents’ names and contact details. Include relatives who live elsewhere. Bring probate appointment papers if any have been issued, and note who has the medical, employment and insurance records. If family members disagree about proceeding, say so; counsel needs that information to assess whom they can represent.
A wrongful death lawyer in Dallas can review the family’s claim alongside the estate’s claim. Ask which losses belong in each, what evidence is still missing and whether probate counsel needs to be involved. These questions affect how the case is prepared and how any proposed settlement should be evaluated.
A lawyer may help by:
- Conducting an Investigation: Your lawyer can gather police reports, witness statements, medical records, scene evidence, and other proof needed to show how the fatal incident happened and who was at fault.
- Identifying the Right Parties: An attorney can determine who may bring the wrongful death claim, who should represent the estate, and how those roles affect the case.
- Handling Estate Issues: Since a survival action belongs to the estate, it can raise probate-related questions that don’t come up in a wrongful death claim alone. A lawyer can help coordinate those issues and reduce delays.
- Documenting All Damages: Organize each claimed loss with its supporting record or witness. Include support and companionship lost by the family, their mental anguish, and the medical expenses, earnings losses and conscious suffering attributable to the injured person’s claim. Check for missing proof and overlapping amounts.
- Working With Outside Professionals: Some cases require input from medical experts, economists, or other professionals to explain causation, future financial loss, or the value of specific damages.
- Managing Settlement Discussions: A settlement proposal should identify the claims being released and account for the interests of the beneficiaries and the estate. Counsel can review disputed fault, available coverage and the evidence supporting each category of loss before advising on an offer.
FAQ for Wrongful Death and Survival Action
Can You Sue for Pain and Suffering After Someone Dies in Texas?
A claim for the deceased person’s own conscious pain and suffering belongs in a survival action. A survival action allows the estate to recover for the pain and suffering the deceased experienced before death, while a wrongful death claim covers the family’s own losses.
To recover these damages, the evidence must show the deceased was conscious and aware of the pain before passing. Medical records, first-responder testimony and witness observations may supply that proof. Surviving for a period after the injury does not by itself establish consciousness or pain.
Who Gets the Money From a Survival Action in Texas?
The estate receives the money. An invoice in the deceased’s name does not, by itself, answer whether it must be paid or in what order. The representative must follow the applicable estate procedures, including rules governing valid creditor claims, priorities and protections. Ask for the accounting if you do not understand a proposed payment.
Once the required administration and valid obligations are addressed, the remaining funds pass under the will or intestacy law. The people entitled to that balance are not necessarily the same people who can recover their own wrongful death damages.
What Happens if the At-Fault Driver Also Died?
The responsible person’s death does not automatically end the claim. Counsel should identify the proper estate representative, filing procedure and available insurance or estate assets. Coverage and payment depend on the policy and facts; they are not guaranteed.
What Kind of Evidence Is Needed for a Wrongful Death and Survival Action Case?
For a wrongful death claim, evidence includes tax returns and pay stubs to show lost income, along with testimony from family and friends about the nature of their relationship with the deceased.
For a survival claim, medical records, first-responder accounts and witness observations may help establish consciousness and suffering. An autopsy can help explain cause of death but does not, by itself, show what the person consciously experienced. Billing and employment records may support other estate losses.
Does My Loved One Need a Will for Us To File a Claim?
You don’t need a will to file either a wrongful death claim or a survival action. A wrongful death claim is brought directly by the statutory beneficiaries, and the existence of a will is irrelevant.
Without a will, counsel should first check whether an estate administration is needed. The appointed personal representative ordinarily brings the survival claim. There is a limited alternative: heirs may proceed when no administration is pending and none is necessary. The family must establish that the exception applies; being next of kin alone does not settle the authority question.
Are There Caps on Damages in Texas Wrongful Death Cases?
An ordinary negligence claim against a private driver generally has no across-the-board cap on compensatory damages. Different rules can apply to health care liability claims, governmental defendants and exemplary damages. Insurance limits also affect available coverage, but they are not the same as a statutory damages cap. Counsel should identify which limits apply to each defendant and claim.
Related resources: Explore the Texas Wrongful Death Knowledge Hub and Texas Wrongful Death Claims and Litigation Strategy.
Speak With a Texas Wrongful Death Attorney Today
The grief and confusion following the loss of a family member can make legal decisions feel difficult. The Law Firm of Aaron A. Herbert, P.C. is here to provide the clear answers and determined representation you need.
If you have lost a loved one in Texas, contact our office today at (214) 200-4878 or fill out our online form to schedule a free, no-obligation consultation.
ABOUT THE ATTORNEY
Aaron A. Herbert
Founding Attorney
Board Certified in Personal Injury Trial Law
Aaron founded The Law Firm of Aaron A. Herbert in 2010 to focus on developing each client's case and seeking its maximum value. For over a decade, he has represented people seriously injured in major accidents and industrial catastrophes, pursuing trial verdicts and settlements while working to reduce the stress of litigation.
Education
- Texas A&M University · B.S., Criminal Justice, 1999
- University of Oklahoma College of Law · J.D., 2002; graduated in the top of his class
Trial experience & approach
Aaron earned numerous jury verdicts at boutique personal injury litigation firms. According to his biography, he spent a year as the top-earning litigation attorney at a firm that frequently appeared in verdict searches as having one of the highest numbers of trial wins in Texas. At another Dallas personal injury firm, he moved from managing pre-litigation attorney to managing litigation attorney over seven years as the firm grew into one of Dallas's largest personal injury firms.
His biography describes a reputation as one of America's most aggressive trial lawyers, with noteworthy recoveries from judges and juries and substantial pretrial settlements. Most of those settlements included confidentiality agreements requested by the defense. Aaron has said the recoveries were justified by the injuries and losses involved, which no amount of money could make someone choose to experience.
His approach combines passion, preparation, persistence and courtroom imagination. He believes a well-supported, engaged and motivated team working cooperatively helps deliver strong representation, with the goal of achieving the best possible result for every client.
Dallas roots, military service & publication
Born and raised in Dallas, Aaron enlisted in the United States Marine Corps after high school and later received an Honorable Discharge. He completed his university and law degrees after his military service and became a lifelong Sooners football fan in law school.
Publication: “Litigating Dog Bite Cases,” Texas Dog Law Seminar, Dallas, 2009.
Professional affiliations & recognition
Professional affiliations and recognition listed in Aaron’s biography:
- State Bar of Texas
- American Bar Association
- Association of Trial Lawyers of America (now American Association for Justice)
- Texas Trial Lawyers Association
- Dallas Trial Lawyers Association
- Dallas Bar Association
- Tarrant County Bar Association
- Million Dollar Advocates Forum
- The National Trial Lawyers – Top 100 Trial Lawyers
Trial experience & approach
Aaron earned numerous jury verdicts at boutique personal injury litigation firms. According to his biography, he spent a year as the top-earning litigation attorney at a firm that frequently appeared in verdict searches as having one of the highest numbers of trial wins in Texas. At another Dallas personal injury firm, he moved from managing pre-litigation attorney to managing litigation attorney over seven years as the firm grew into one of Dallas's largest personal injury firms.
His biography describes a reputation as one of America's most aggressive trial lawyers, with noteworthy recoveries from judges and juries and substantial pretrial settlements. Most of those settlements included confidentiality agreements requested by the defense. Aaron has said the recoveries were justified by the injuries and losses involved, which no amount of money could make someone choose to experience.
His approach combines passion, preparation, persistence and courtroom imagination. He believes a well-supported, engaged and motivated team working cooperatively helps deliver strong representation, with the goal of achieving the best possible result for every client.
Dallas roots, military service & publication
Born and raised in Dallas, Aaron enlisted in the United States Marine Corps after high school and later received an Honorable Discharge. He completed his university and law degrees after his military service and became a lifelong Sooners football fan in law school.
Publication: “Litigating Dog Bite Cases,” Texas Dog Law Seminar, Dallas, 2009.
Professional affiliations & recognition
Professional affiliations and recognition listed in Aaron’s biography:
- State Bar of Texas
- American Bar Association
- Association of Trial Lawyers of America (now American Association for Justice)
- Texas Trial Lawyers Association
- Dallas Trial Lawyers Association
- Dallas Bar Association
- Tarrant County Bar Association
- Million Dollar Advocates Forum
- The National Trial Lawyers – Top 100 Trial Lawyers