Wrongful Death and Survival Claims for Texas Families

Start with a family and estate claim review

Different relatives may have different legal interests after a death. Identifying those interests early helps the legal team determine whom it represents, who has authority to act and whether an estate representative or separate advice is needed. A family contact person does not automatically have authority to settle everyone's claim.

Who benefits from a Texas wrongful death claim?

Texas Civil Practice and Remedies Code Section 71.004 identifies the surviving spouse, children and parents as wrongful death beneficiaries. One or more of them may bring an action for the benefit of all. Being named in a will is a different issue from qualifying as a wrongful death beneficiary.

A claim still requires a legally supported basis for liability and proof connecting the wrongful act to the death. A fatal accident does not automatically establish liability. The rules may vary with the defendant and circumstances, including medical care, government entities or a covered workplace death.

If none of the eligible individuals begins an action within three calendar months after the death, the executor or administrator shall bring and prosecute it unless all those individuals request otherwise. This rule is not a three-month filing deadline and does not mean a family should wait three months to seek advice.

Organize one timeline and separate sets of loss records

The same incident may support both claims, but the evidence serves different purposes. Start with a timeline covering the injury, medical treatment and death. Then distinguish records of your loved one's injuries from records of the family's losses.

• Incident and causation: reports, witness contacts, photographs, video and medical records that help explain how the injury led to the death.
• Before-death treatment: hospital and therapy records, bills and evidence relevant to any conscious pain, suffering or lost earnings before death.
• Family support: employment and financial records, household contributions and examples of care or guidance provided to eligible relatives.
• Authority and identity: available death certificates, family relationship documents and court papers appointing an executor or administrator.
• Existing communications: insurance letters, benefit notices, settlement documents and information about other attorneys involved.

Missing records should not delay an initial conversation. Tell the legal team what exists and who may hold it, so evidence-preservation requests and deadlines can be assessed promptly.

Family losses and estate losses are evaluated separately

The distinction concerns whose loss is being claimed. It does not permit the same loss to be recovered twice. The facts, applicable law and available proof determine which damages may be pursued and how a recovery is allocated.

Keep funeral and burial invoices and identify who paid them. Counsel can determine the proper claim and treatment of those expenses. For additional background, read how Texas law evaluates wrongful death compensation.

How a survival action continues your loved one's claim

Under Section 71.021, a personal injury cause of action does not end because the injured person dies. The statute provides that it survives in favor of the heirs, legal representatives and estate. Determining the proper person to bring it requires review of the estate's circumstances and applicable procedure.

A survival claim addresses injury-related losses belonging to the deceased person, rather than the relatives' grief or lost support. Proof of conscious pain and suffering, for example, must be supported by the evidence; it is not presumed merely because a death occurred.

An existing will, probate proceeding or appointed representative may affect the next steps. Do not assume that any relative, or the person arranging the funeral, can sign a release on behalf of the estate. Bring appointment papers and prior legal documents to the consultation.

Exemplary damages require a separate legal assessment

Exemplary damages are intended to punish qualifying misconduct rather than compensate a particular loss. Under Texas Civil Practice and Remedies Code Section 41.003, the ordinary standard requires clear and convincing evidence of fraud, malice or gross negligence. Ordinary negligence alone does not satisfy that standard.

Additional limitations and case-specific rules may apply. These damages should not be treated as automatic or included as a promised component of a family's recovery.

Coordinate deadlines, representatives and settlement decisions

Wrongful death and survival claims may be investigated together, but their deadlines and procedural issues must be assessed separately. Section 16.003 generally provides a two-year period for an action for injury resulting in death, accruing on the date of death. Other rules, exceptions and notice requirements can affect a case; do not calculate a survival-action deadline by simply restarting the clock at death.

1. Confirm parties and authority

   Identify beneficiaries, any minors and the estate representative. Tell counsel about pending probate proceedings or disagreements that could affect representation.

2. Preserve records and review deadlines

   Ask about evidence that may be lost, required notices and each claim's filing period. The three-month provision about an executor is different from the limitation period.

3. Review a proposed resolution before signing

   A settlement may address multiple claims and people. Counsel should explain the release, allocation, any estate or minor-related approvals and potential reimbursement obligations before a decision is made.

Prepare for your consultation

Gather the information you already have. Missing records do not prevent you from contacting the firm.

Wrongful death resources