Texas Personal Injury Resource
Wrongful Death Claims in Texas — What Families Need to Know
When someone dies as a result of another party’s negligence or wrongful conduct, Texas law gives surviving family members the right to seek compensation. This guide explains who can bring a wrongful death claim, what damages are available, how the process works, and what to do in the critical days after a loved one’s death.
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What Is a Wrongful Death Claim in Texas?
A wrongful death claim is a civil lawsuit brought by surviving family members when a person dies as a result of another party’s negligence, recklessness, or intentional conduct. Unlike criminal prosecution — which the state brings against the wrongdoer — a wrongful death claim is brought by the family to recover compensation for the losses they have suffered as a result of their loved one’s death.
Texas wrongful death law is governed by the Texas Wrongful Death Act (Tex. Civ. Prac. & Rem. Code §71.001 et seq.). The Act creates a cause of action that did not exist at common law — historically, a personal injury claim died with the injured person. The Wrongful Death Act gives surviving family members their own independent right to recover for the losses they personally suffered.
Important Distinction
A wrongful death claim compensates the survivors for their own losses — grief, lost support, lost companionship. A separate claim called a survival action compensates the deceased person’s estate for the losses the deceased suffered before death. Both claims often arise from the same incident and are typically filed together.
Who Can File a Wrongful Death Claim in Texas?
Under Tex. Civ. Prac. & Rem. Code §71.004, the following individuals may bring a wrongful death claim:
- Surviving spouse
- Children — both biological and legally adopted
- Parents — including adoptive parents
Notably, siblings, grandparents, and other relatives do not have an independent right to bring a wrongful death claim under Texas law — even if they were financially dependent on the deceased or had a close relationship with them.
If none of the qualified family members file a wrongful death claim within three months of the death, the executor or administrator of the deceased’s estate may file on behalf of the estate — unless the beneficiaries expressly request that the personal representative not file.
Multiple Claimants
When multiple family members have wrongful death claims — for example, a surviving spouse and adult children — each has an independent claim. These claims are typically consolidated and resolved together. The damages recovered are distributed based on each claimant’s individual losses, not equally divided.
The Survival Action — Claims of the Estate
The survival action (Tex. Civ. Prac. & Rem. Code §71.021) preserves the claims that the deceased person would have had if they had survived. It is brought by the executor or administrator of the estate and recovers damages on behalf of the estate rather than the surviving family members.
Survival action damages typically include:
- Medical expenses incurred before death
- Physical pain and suffering experienced between the injury and death
- Mental anguish experienced between the injury and death
- Lost earnings from the time of injury to the time of death
- Property damage
In cases where death was not instantaneous — where the victim suffered for hours, days, or longer before dying — the survival action damages can be substantial.
Damages in Texas Wrongful Death Cases
Texas wrongful death damages compensate surviving family members for both economic and non-economic losses. Damages are determined individually for each claimant based on their specific relationship with the deceased and their personal losses.
| Damage Category | What It Covers |
|---|---|
| Pecuniary losses | Financial support the deceased would have provided — earnings, gifts, services such as childcare, home maintenance, and household contributions |
| Loss of companionship and society | The love, comfort, companionship, and mutual association the surviving family member has lost |
| Loss of consortium | For surviving spouses — the loss of the marital relationship, including affection, solace, and support |
| Mental anguish | The grief, sorrow, and emotional suffering experienced by surviving family members |
| Loss of inheritance | The value of the estate the deceased would reasonably have accumulated and left to the beneficiaries |
| Funeral and burial expenses | Reasonable funeral and burial costs paid by surviving family members |
Texas does not cap compensatory damages in wrongful death cases. However, punitive (exemplary) damages — awarded when the defendant’s conduct was grossly negligent, malicious, or fraudulent — are capped under Tex. Civ. Prac. & Rem. Code §41.008 at the greater of $200,000 or two times the amount of economic damages plus up to $750,000 in non-economic damages.
Proving a Wrongful Death Claim in Texas
To prevail in a Texas wrongful death case, the plaintiff must prove four elements by a preponderance of the evidence:
| Element | What Must Be Shown |
|---|---|
| 1. Duty | The defendant owed a legal duty of care to the deceased — drivers owe a duty to other road users; doctors owe a duty to patients; property owners owe a duty to visitors |
| 2. Breach | The defendant breached that duty — through negligence, recklessness, or intentional wrongdoing |
| 3. Causation | The breach directly caused the death — the defendant’s conduct was both the actual cause and the proximate cause of the death |
| 4. Damages | The surviving family members suffered compensable losses as a result of the death |
Comparative Fault
Texas follows a modified comparative fault rule (Tex. Civ. Prac. & Rem. Code §33.001). If the deceased was partly at fault for the incident that caused their death, damages are reduced proportionally. If the deceased was more than 50% at fault, the surviving family members are barred from recovery entirely. Defense attorneys routinely try to shift fault to the deceased — having experienced legal representation to counter these arguments is essential.
Common Wrongful Death Cases in Texas
| Case Type | Common Defendants |
|---|---|
| Motor vehicle accidents | Negligent drivers, commercial trucking companies, employers of negligent drivers |
| Truck and commercial vehicle accidents | Trucking companies, drivers, vehicle manufacturers, cargo loaders |
| Medical malpractice | Physicians, hospitals, nurses, anesthesiologists, pharmacists |
| Workplace accidents | Employers, third-party contractors, equipment manufacturers |
| Defective products | Manufacturers, distributors, retailers of dangerous products |
| Premises liability | Property owners who failed to maintain safe conditions |
| Drunk driving accidents | Intoxicated driver, and potentially dram shop liability against alcohol vendors |
Statute of Limitations — Do Not Wait
Texas wrongful death claims must be filed within two years from the date of death (Tex. Civ. Prac. & Rem. Code §16.003). This is a hard deadline. Missing the statute of limitations bars recovery entirely — no matter how strong the underlying case is.
There are limited exceptions — for example, cases involving minors or cases where the defendant fraudulently concealed their wrongdoing. But relying on an exception is far riskier than filing on time.
Do Not Wait to Consult an Attorney
Evidence disappears quickly after an accident — surveillance footage is overwritten, witnesses become difficult to locate, vehicles are repaired or destroyed, and physical scenes change. The sooner an attorney can begin investigating and preserving evidence, the stronger the case. Contact an attorney as soon as possible after a wrongful death — do not wait for the insurance company to complete its investigation.
The Wrongful Death Legal Process
Most wrongful death cases follow this sequence:
- Investigation and evidence preservation — accident reconstruction, witness interviews, medical records, employment records, surveillance footage
- Insurance claims and negotiations — initial demand and negotiation with the at-fault party’s insurance carrier
- Filing the lawsuit — if a fair settlement cannot be reached, a lawsuit is filed in the appropriate Texas district court
- Discovery — both sides exchange evidence, take depositions, and retain experts
- Mediation or settlement — a large percentage of wrongful death cases settle before trial
- Trial — if settlement fails, the case is tried before a judge and jury
Most personal injury attorneys, including wrongful death cases, handle these cases on a contingency fee basis — you pay no attorney’s fees unless the case is resolved successfully. The attorney’s fee is a percentage of the recovery, typically 33–40% depending on whether the case settles or goes to trial.
What to Do After a Wrongful Death in Texas
- Contact an attorney before speaking to the insurance company. Insurance adjusters — even seemingly sympathetic ones — are working to minimize the claim. Do not give recorded statements without legal representation.
- Preserve all evidence. Photographs, videos, documents, communications, the deceased’s phone and electronic devices — preserve everything and give nothing to anyone without consulting your attorney.
- Gather records. Medical records, employment records showing income history, financial records showing the deceased’s contributions to the household — all are essential for calculating damages.
- Document your losses. Keep records of funeral expenses, grief counseling costs, lost income if you had to take time from work, and any other expenses incurred as a result of the death.
- Be cautious on social media. Defense attorneys routinely monitor the social media of wrongful death claimants. Do not post about the case, the accident, or your activities during the pendency of the lawsuit.
- Understand the timeline. Two years from the date of death. Do not let the statute run while you are waiting to hear from an insurance company.
Central Texas Personal Injury
Your family deserves answers — and accountability. We can help.
Carl Knickerbocker handles wrongful death cases throughout Round Rock, Georgetown, and Central Texas. Free consultation. No fee unless we recover.
Schedule a Free Consultation (512) 763-9282