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.
That distinction matters because the two claims involve different parties, different damages, and different legal rules. Understanding how they work together can help families make sense of their options after a fatal accident.
A Texas wrongful death attorney can help separate these claims, identify who may bring each one, and build a case that reflects the full scope of the loss.
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.
- Only specific statutory beneficiaries (surviving spouse, children, and parents) can file a wrongful death claim.
- 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 main difference is that a wrongful death claim compensates the family for their losses, while a survival action seeks compensation for the harm the deceased suffered before death. That distinction affects who can bring the claim, who receives the compensation, and what damages may be available.
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 | Estate representative |
| 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, then the heirs or beneficiaries |
| Main Purpose | Compensate the family | Continue the deceased’s injury claim |
Who Is Eligible To File a Wrongful Death Claim in Texas?
Only the spouse, children, or parents (defined by the Texas Wrongful Death Act as statutory beneficiaries) have legal standing to file a wrongful death lawsuit. This is a very strict rule, which excludes many relatives.
If one of these parties doesn’t file a claim within three calendar months of the decedent’s death, the personal representative of the estate can then file the claim on their behalf unless specifically asked not to.
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.
Texas law doesn’t permit siblings, grandparents (unless they have legally adopted the decedent), or unmarried partners to file a wrongful death claim, no matter how close their relationship was.
What Damages Are Available in a Wrongful Death Lawsuit in Dallas?
Wrongful death damages in Dallas are meant to compensate eligible family members for the personal and financial losses they have suffered because of the death, including lost inheritance and companionship. These damages differ from a survival action, which covers the harm the deceased suffered before death.
Damages in a wrongful death claim may include:
- Lost Earning Capacity and Financial Support: This covers the income and financial support the deceased likely would have provided over time, including wages, benefits, and help with household expenses.
- Loss of Inheritance: This refers to the money or assets surviving family members likely would have received if the deceased had lived a normal lifespan and continued building wealth.
- Loss of Services: This covers the practical help the deceased provided, such as childcare, transportation, home maintenance, meal preparation, or managing household finances.
- Loss of Companionship and Guidance: This compensates family members for losing the love, comfort, presence, advice, care, and guidance the deceased provided in the relationship.
- 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?
A survival action allows the deceased person’s legal claim to continue after death, so the estate can recover for the harm they suffered before passing. It shifts the focus entirely from the family's loss to the decedent's own experience between the moment of injury and the moment of death.
The damages awarded in this type of claim are paid to the estate, not directly to family members. The funds are then used to pay debts, including final medical bills, before being distributed to heirs according to a will or state law.
Common damages recovered through a successful survival action include:
- Medical Expenses: A survival action may recover all costs for medical care from the time of the incident until death.
- 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: The reasonable expenses associated with the funeral and burial services are included.
In cases of extreme negligence, the estate may also be able to pursue exemplary damages, also known as punitive damages, which are intended to punish the wrongdoer and deter similar conduct.
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. This deadline is extremely important. If you don’t file a lawsuit in the appropriate court before the deadline, the family will lose the right to seek compensation forever.
There are some limited exceptions, known as tolling provisions, that can pause or extend this deadline, such as when the claimant is a minor. However, relying on an exception is risky, and it is always best to act quickly to preserve all legal options.
While two years may seem like a long time, investigating a claim, gathering evidence, and preparing a lawsuit takes considerable effort.
How a Lawyer Helps With a Wrongful Death and Survival Action
Handling a wrongful death claim and a survival action by yourself can be difficult because each claim serves a different purpose and follows a different path. One focuses on the family’s losses, while the other focuses on the harm the deceased suffered before death and may also involve estate-related issues.
A wrongful death lawyer in Dallas helps make sure both claims are developed correctly, supported with the right evidence, and positioned for a fair result. That matters because missing damages, probate issues, or proof problems in either claim can affect the overall recovery.
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: A strong case should account for all recoverable losses, including lost financial support, companionship losses, mental anguish, medical bills, pain and suffering, and other damages supported by the facts.
- 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: Insurers may challenge fault, dispute damages, or try to blur the difference between the two claims. A lawyer can respond to those tactics and push for a fairer evaluation.
FAQ for Wrongful Death and Survival Action
Can You Sue for Pain and Suffering After Someone Dies in Texas?
You can sue for pain and suffering after someone dies in Texas, but only through 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. That proof may come from medical records, first-responder testimony, witness statements, and other evidence showing that the person did not die instantly.
Who Gets the Money From a Survival Action in Texas?
The money from a survival action is paid to the decedent’s estate. Once in the estate, the funds are first used to pay off any outstanding debts, such as final medical bills or credit card balances.
After all creditors are paid, the remaining funds are distributed to the heirs named in the decedent's will or, if there is no will, according to Texas intestacy laws.
What Happens if the At-Fault Driver Also Died?
If the person responsible for your loved one’s death also died in the incident, a claim can still be made against their estate. Their auto or homeowner's insurance policy would typically be the source of any recovery.
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 action, critical evidence includes medical records, autopsy reports, first responder testimony, and witness statements that can prove the decedent was conscious and experienced pain before their death.
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.
For a survival claim, the court will appoint an administrator of the estate if there is no will, and that person will have the legal authority to file the lawsuit on the estate’s behalf.
Are There Caps on Damages in Texas Wrongful Death Cases?
In most wrongful death and survival action cases stemming from general negligence, like a car accident, there are no caps on economic or non-economic damages. The rules are complex, and the specific facts of your case will determine if any damage caps apply.
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.
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