Everything you need to know about bringing a Texas wrongful death lawsuit, all in one place
Everyone understands that if someone deliberately murders a loved one, the police will arrest that person and lawyers who work for the State of Texas will prosecute the murderer to the fullest extent of the law.
But what happens when a loved one is killed by accident or through carelessness, rather than through a willful murder? The answer to this question is found in the Texas Wrongful Death Act. Frankly, most lawyers are reluctant to provide information to grieving family members about wrongful death law. Instead, they take a paternalistic approach, wherein they impliedly state, "I know what I'm doing, just trust me" while effectively keeping their clients in the dark.
We think that's the wrong way to practice law and that a client has the right to know how their case is being handled and why. On that note, we have prepared the following material to thoroughly explain the ins-and-outs of Texas wrongful death law so that you can:
- know your rights,
- know how to file a wrongful death claim, and
- know what juries typically award grieving families.
Beyond the information presented below, our attorneys possess a wealth of knowledge on the subject of wrongful death law, having litigated hundreds of fatal accident cases. But more importantly, we've been in your position before.
Several of our attorneys and staff have lost loved ones due to the carelessness of others, so we make it our mission to not only help our clients win their case, but to treat them with respect and compassion. A big part of that goal is being there for your clients when they need you. As such, should you have any questions, about your particular situation, call us. We're here to help.
Understanding Texas Wrongful Death Legal Terminology
It's helpful to understand all of the legal terminology we'll use on this page. Here some key words, phrases, and terms of art used in the subject wrongful death law:
- Decedent: The person who died in the accident
- Defendant: The person/party being named in the lawsuit who allegedly caused the decedent's death through their negligence. A lawsuit can have multiple defendants, or just one.
- Negligence: Behaving irresponsibly or unsafely. More specifically, it's defined as breaching a duty owed to someone else.
- Duty: The obligation someone has to act reasonably and safely, and not to cause harm. E.g., a doctor has a duty to care for their patients and drivers have a duty to drive the speed limit.
- Claim: A lawsuit, essentially. If you have a claim, you have a right to a lawsuit.
- Compensation: The money paid to you in a wrongful death lawsuit, depending on how great your damages are.
- Damages: Represents the losses suffered in a wrongful death. "Damages" refers to what you can sue for by law, and can be physical injuries, lost wages, mental anguish, etc.
- Texas Wrongful Death Act: The written law, drafted by our state's lawmakers in the early days of Texas, which creates a specific right for the family to sue when a relative is wrongfully killed. The law allows the family members to sue for certain damages when their loved one is killed due to someone's negligence.
- Wrongful Death Claim: The claim that Texas law allows certain family members, statutory beneficiaries, to file for their damages due to losing their loved one.
- Statutory beneficiary: The particular family members that Texas law allows to file wrongful death claim
- Texas Survival Statute: A written law that allows a decedent's estate to sue for the pain and suffering that the deceased endured prior to their death.
- Survival Claim: The decedent's claim that they would have filed, save for their death, is taken over by the personal representative of their estate - oftentimes a family member.
- Personal Representative of the decedent's estate: The representative of the estate is the person who handles the financial affairs of the decedent. Who gets to be the personal representative of the estate? The PR of the estate is either specifically named in the decedent's will or a family member will petition the court and ask to serve as the PR. The PR of the estate is tasked with pursuing the survival claim.
Additionally, our Frequently Asked Questions page is very helpful in addressing common concerns that our readers have.
What Makes a Death a "Wrongful Death"?
Under what circumstances can you file a lawsuit? Perhaps the simplest way to understand when you can file a wrongful death claim is this: when someone inflicted an injury through negligent or reckless behavior and the victim passes away instead of simply being injured, then the victim's family has a claim for wrongful death.
The operating word, as you've easily picked up by now, is wrongful. There must be some kind of bad act rather than a coincidence or a set of uncontrollable actions. A few quick examples can flesh this out:
- An 18-wheeler driver is on drugs when behind the wheel. He blanks out and steers into oncoming traffic, hitting a motorcyclist. The fault is plainly on the truck driver. If the motorcyclist lives, he has a personal injury claim. If he passes away, his family will have a wrongful death claim.
- A woman takes a defective drug for diabetes that ends up causing her cancer. Until she dies, she has a personal injury claim. Once she dies, her family has a wrongful death claim.
- A child has a congenital heart condition and is treated by a doctor. Despite the doctor's best efforts, the child dies. While clearly a tragedy, so long as the doctor didn't perform substandard medical treatment, the family does not have a wrongful death claim against the doctor.
You'll notice in the above examples, a personal injury claim---in which someone misbehaves and causes harm---becomes a wrongful death claim for the family once the individual passes away.
Who Can File a Wrongful Death Case?
When someone dies prematurely, countless people suffer in their own way. Valued employees no longer contribute to their organizations, friends lose confidants, and society at large misses out on the many ways the decedent could have added to our common well being.
But it would create a logistical nightmare if every single person who was affected by someone's passing was allowed to sue for wrongful death. So, every state in America limits who can file a lawsuit for wrongful death. Each state's legislature has decided through a written law drafted by state lawmakers (or by acquiescence to a state supreme court decision) which family members can sue and which family members they consider to be "too far removed" from the decedent to have legal standing. In Texas, our Wrongful Death Act specifies that only three categories of individuals can file claims:
- children, and
This means that unadopted stepchildren, siblings, same-sex partners, long-term boyfriends and girlfriends, grandparents, and anyone else cannot file a claim. Instead, spouses, children, and parents are referred to as "statutory beneficiaries," meaning, they're the only people our wrongful death statute allow to sue.
Many believe that such limitations don't take into account the changing landscape of the American family. Nonetheless, the law has restricted eligibility and until the legislature changes the rules, it's what we're left with.
- General Overview of the Texas Wrongful Death Act
- Who can file suit in a wrongful death claim?
What Exactly Is a Wrongful Death Case?
To briefly review what we've just said, there are only three types of family members who are allowed to bring wrongful death claims when a loved one dies. But, what does a wrongful death case actually look like? Here are three unique things about wrongful death claims you need to be familiar with:
I. The wrongful death claim is yours
Except in limited circumstances, you're not technically filing a claim on behalf of the decedent in a wrongful death claim. A wrongful death claim is for what you personally lost, not what your loved one lost by dying before their time. (Further down the page, we'll talk about the "survival claim" which is filed on your loved one's behalf)
In a wrongful death claim, you're allowed to sue for certain losses, which we've outlined below. These are the compensatory damages, or the losses which Texas law says you can be compensated for.
- Losses of a pecuniary nature (financial)
- Loss of decedent's earning capacity. This refers to what someone would have made, given their education, age, and work history.
- Expenses associated with psychological treatment or therapy
- Loss of services
- Loss of parental services
- Loss of child services
- Loss of spousal services
- Loss of advice and counsel. In general, parents, spouses, and children provide help around the house, child care, and guidance that's taken away by the wrongful death.
- Funeral expenses. The costs of laying the loved one to rest can be recovered in a lawsuit, but only if they've been paid for by the family. If the decedent's estate paid for the funeral, that's a different story.
- Mental anguish, which refers to the emotional pain caused by the loss of your loved one.
- Loss of companionship and society. This is the loss of time and enjoyment you would have likely had with your loved one.
- Loss of inheritance. This is the amount a beneficiary of a will or estate claim would have likely received.
- Punitive damages
II. Your wrongful death claim piggybacks the decedent's personal injury case:
This is where it can get a little confusing. While your wrongful death case's damages are based solely on your losses, the mechanism by which you sue the defendant is the underlying personal injury right to sue. For instance:
- If your loved one was killed in a car accident, you file a wrongful death claim against the defendant and all the underlying elements of the case are the same as they would be in a car accident personal injury case.
- If your loved one was killed in a work-related accident, you file a wrongful death claim against the defendant employer and all the underlying elements of the case are the same as they would be in a work injury case.
- If your loved one was killed due to a negligent doctor's mistakes (called "medical malpractice"), you file a wrongful death claim against the doctor or hospital, and all the underlying elements of the case are the same as they would be in a regular medical malpractice personal injury case.
In legalese, we would say that a wrongful death claim is a "derivative claim," meaning that the family's right to sue for the family's losses is derived from the actual victim's underlying personal injury claim. But it's much clearer to simply say that a wrongful death claim piggybacks on the personal injury claim the decedent would have been able to file if they were injured instead of killed.
III. Your claim is limited in the same way that the "personal injury version" of your case is limited
Since a wrongful death claim is based on personal injury law, that means it follows all the same rules. If the law puts some restriction on a personal injury case, then it puts the same restriction on a wrongful death case. One way to think about this is to imagine a wrongful death case as simply a personal injury case where someone was "injured" to death.
Here are the three ways a wrongful death claim is limited:
1. Limited by operation of law
If, for example, someone has a personal injury medical malpractice case, they are limited in the amount that they can sue for under Texas law because of a “damages cap” that was voted into law. That means the defendant (in this case, a doctor or a hospital) only ever has to pay some fixed amount, or less. By extension, if someone dies due to medical malpractice, their family members’ wrongful death case is also limited to the same damages cap.
Further, if someone is hurt on the job in Texas, and their employer elects to participate in the work injury disability plan known as “workers’ compensation,” then the injured worker is not allowed to file suit, and he must instead file an administrative claim with the workers’ compensation system. Again, a fatal work injury results in a wrongful death claim, which is limited by the same inability to file a lawsuit.
Yet another example would be if someone signs an agreement to settle all disputes in arbitration rather than in court (known as a binding arbitration agreement), but they are injured after signing the agreement. They can only seek compensation through the arbitration process, and they are disallowed from suing the person they made the agreement within a regular court of law.
Likewise, if the person who signed the arbitration agreement dies, their family is also only able to pursue the case through the arbitration process. They cannot file a regular lawsuit.In other words, your right to file a wrongful death case is intimately tied to the underlying personal injury laws. In legalese, we would say that you have a wrongful death damages model that is predicated on proving liability under the applicable personal injury theory of negligence.
2. Limited by comparative fault
Comparative fault is the law’s way of saying that each party involved in an accident is responsible for their own contribution. When a jury hears a case and is asked to apportion fault, they assign a percentage of fault to each party involved, adding up to 100%. In Texas, and many other states, you can’t receive compensation for your damages if you’re more than 50% at fault for your own accident. We call this the doctrine of modified comparative fault.
Since fault is apportioned by percentage points, that corresponds to a dollar amount the responsible party has to pay. So, as an example, imagine a car accident scenario where one driver is rear-ended by another on a rainy, wet road and suffers back injuries. Their chiropractic bills amounted to $1,000 and the injured driver files a lawsuit against the other driver. In court, the jury determines that the at-fault driver is only 80% at fault since the roads were wet.
According to Texas’ modified comparative fault regime, the at-fault driver would only owe $800 to the injured driver. Again, each party is responsible only for their contribution.In a wrongful death case, if your loved one had contributed to their own accident in any way, that carries over. Had they lived, their own claim would have been limited by the extent to which they were at fault. Hence, a wrongful death case will be limited in the same way.
3. By the application of defenses
There are a litany of defense strategies and tactics that defense lawyers can try to use against your case. These apply to both personal injury cases and wrongful death cases in the same way. Common defense tactics include trying to discount the evidence in your case, claiming you’ve interpreted the law incorrectly, or even trying to get a judge to throw out your case by invoking a “motion for summary judgement.
Since your claim piggybacks onto the underlying case, it’s extremely important to select an attorney who has actual experience in litigating those specific types of cases. We’ve seen valuable wrongful death cases ruined by lawyers with no knowledge of how to litigate the underlying claim. Think about it this way: you don’t just need a “wrongful death” attorney, you need a wrongful death attorney who has litigated truck accident cases, auto wreck cases, work accident cases, etc. Each type of case is night-and-day different from the other.A common misperception about lawyers is that law school teaches us how to actually practice law. This isn’t true; instead, the tricks of the trade are learned over years of actually working up each individual type of case, knowing the pitfalls and requirements, and being able to make judgment-calls when problems arise.
- The purpose of a wrongful death case is to recover your financial and emotional losses
- In order to succeed, the underlying personal injury case and applicable laws must be favorable because they’ll translate over to your wrongful death case
- Only a lawyer with the experience of handling wrongful death cases in several areas of the law can get you what you deserve
What Is a Survival Claim in Texas?
Let’s begin this topic by saying that it’s a rather tricky subject. Most people probably know that they can file a wrongful death case (or at least they’ve heard of it before), but very few people have ever heard of a survival claim. So, what exactly is a survival claim?
A survival claim is another type of claim filed against the defendant responsible for your loved one’s death. However, instead of being a claim for your losses (like a wrongful death claim), a survival claim is actually a claim against the defendant for the pain and suffering that they caused your loved one to endure. In other words, you’re taking over the claim your loved one would have had.
Technically speaking, the survival claim does not belong to any particular family member. Instead, it belongs to the deceased person. But how can that be? How can the deceased person recover compensation?
The answer is that when people die of perfectly natural causes, they rarely die with every financial loose end already tied up. They usually leave behind some amount of debt (money owed on a mortgage, car payment, unpaid utility bills, etc.) and they also usually leave behind some assets. These assets include money in their checking account, personal possessions, and – most applicable to this discussion – money that is owed to them from some other person.
In order to “dispose” of a deceased person’s debts and assets, an “estate” is created. The estate is simply the deceased person’s legal self that continues after they die until all of the debts and assets are disposed of. How the estate functions is determined either by the instructions in the decedent’s written will (in which they specifically outline how they want these loose ends to be tied up), or, if they do not have a will, by the Texas probate law. The Texas probate late outlines how this process should be handled, and the process of disposing of an estate’ assets is called “probating the estate.”
Now, if someone dies instantly and there was no observable pain and suffering, there is no personal injury claim to be filed by their loved ones. For the purposes of this discussion, though, we can assume that when your loved one passed away, it was due to their injuries. That would mean they had an injury case against the person who hurt them (unless they died instantly). In other words, they were “owed” money by that person since that they caused your loved one to suffer. But, when your loved one passed away, their injury case and the money they were owed did NOT die with them. Rather, the right to sue for injuries became another asset of their estate that needs to be probated.
To clarify, let’s consider an example. Imagine a man named John who owns $500 in cash, a few outfits, and a car that is paid off. John owes $200 in utility bills, but is otherwise debt-free. Let’s say that John is killed in a work accident wherein he was hit by a forklift and suffered numerous broken bones and injuries, dying at the hospital a few days later. Up until his death, he would have had a work injury case – which would have resulted in him being compensated for his broken bones and other injuries. Let’s say that his broken bones and whatnot entitled him to $100k in compensation. Furthermore, his hospital bills amounted to $30K. When it comes time to probate his estate, whoever is in charge of his estate will use his $500 in cash to pay the $200 utility bill, they will then sell his clothes and his car for, say, $5,000. Then, they will sue the forklift driver for John’s injuries and settle with that company for the $100k. If we’re looking at John’s estate’s assets, it should look something like this:
- $5,500 in cash (what he had in his bank account plus the money made from selling his car and clothes
- $100,000 in cash paid for his work injury claim
- $200 to pay the utility bill
- $30,000 in medical bills incurred prior to his death
Doing the math, once John’s estate is probated, the estate has remaining assets to the tune of $75,300. That money will then be handed out per a plan of distribution outlined in John’s will, or according to Texas probate law if he has no will. In practical terms, though, the statutory beneficiaries (spouse, parents, children) are the ones who usually get any money from the estate per the decedent’s will, since they are often times close family members. Further, the person in charge of the estate is normally a statutory beneficiary as well.
- Find out more: Who Can File for a Survival Claim?
It’s possible that someone could die and leave a will, stating that all of their money should go to someone their family has never heard of, but that’s not usually the case. When there is no will, the money will eventually go to the family and is divided according to a formula found in Texas probate law.
As a matter of convention, even though the survival claim is distinct from the wrongful death claim, they are usually filed in unison in a single lawsuit by the statutory beneficiaries.
In a survival claim, the estate can be owed several types of compensation, such as:
In the interest of complete and accurate information, there is an abnormal scenario wherein a relative can have an ongoing personal injury case only to die from something unrelated to the injury, and the family, under the survival statute, can inherit that relative’s injury case. It’s the same concept as what we described above, only it’s taken in a different direction. Again, though, this is a rare phenomenon. Read more about it: