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Who Can File Under the Texas Survival Statute?

The purpose of the Texas Survival Statute is to provide compensation for the victim’s estate, since the victim is no longer able to fight for herself. The new laws are a vast improvement from the laws Texas had in the past, when the victim could not make any injury claims if they died because or after the incident. Even though the victim can no longer receive the compensation, it can help pay for the medical bills, loss of wages, etc., which all financially affect his or her estate, in addition to any pain and suffering. In some cases the estate falls on a close family member. In others, it falls on a court appointed attorney. You can read about the difference between the Texas Survival Statute and and the Texas Wrongful Death Act in more detail on this page. This article focuses on and outlines who can legally file on behalf of the victim and how this is different from a wrongful death claim.

Who files the survival claim?

Survival claims are sometimes filed by close family members, but it depends on who the representative of the estate is. If there is a will, the person indicated in the will is the representative. If there is not a will, an heir (the child, parent, or spouse) of the deceased can be the representative. If there is no surviving heir, a personal representative (another family member or someone appointed by probate court) can bring a survival action on behalf of the estate.

How is this different from a wrongful death claim?

In a wrongful death claim, there has to be an heir in order for the claim to be made. If there is no heir, there is no wrongful death claim, because the main purpose of the wrongful death claim is so that the family members of the deceased can receive justice and hold the wrongdoers accountable for their actions. Therefore, in a wrongful death claim, the plaintiff or plaintiffs must fall under the category of parent, child, or spouse. In a survival claim, there is only one person representing the claim. If there is no will and there is more than one heir, an agreement between the heirs must be made on who will represent the claim.

A closer look at the survival statute

If how all this works still seems a bit unclear, here are a few examples of how to identify whether or not there is a survival claim, and who would be able to file:

  • Manny is critically injured on the job when some machinery malfunctions and crushes his legs. He undergoes emergency amputation surgery, but is unfortunately unable to recover. Manny is married, but he doesn’t have any kids, and his parents are deceased. Therefore, his wife is able to file a survival claim for Manny for the time that he was in the hospital and for the pain he went through before his death. (This is basically his personal injury claim that survives him in death.) In this situation, Manny’s wife would also have a wrongful death claim, but it would be separate from the survival claim. Any compensation received for the survival claim goes to Manny’s estate (which first pays for debts owed, such as the hospital bills) and if there is money left over, to his heirs. If Manny’s wife were to file a wrongful death claim, she would receive all of the compensation. If Manny and his wife had kids, they would be able to file their own wrongful death claims as well.
  • Wanda is a pedestrian crossing a highway when a drunk driver strikes her while going 75mph, killing her instantly. In this case, there would be no survival claim, because Wanda did not consciously suffer from injuries before her death. Wanda’s spouse, parents, or children would file a wrongful death claim against the drunk driver or a bar (if the driver was over-served).
  • Pablo is riding a roller coaster at a new theme park when his restraint breaks and he is thrown from a height of more than 250 feet. Pablo dies instantly on impact, but his mother files a survival claim as the representative of Pablo’s estate for the mental anguish he endured before his death, knowing he was plunging to the ground and was not going to survive the fall. Once it is shown that the roller coaster did in fact malfunction, this would be considered a survival claim because Pablo would have been able to file a personal injury claim if he had survived the fall. Pablo’s mother and father would also both be able to file a wrongful death claim for the loss of their son.

Further Actions

No one ever wants to be in the situation where they have become an estate’s representative. However, it’s good to know how it works in the event that this does happen to you. In order to file the survival claim you must show you are legally the personal representative of the estate or a nominated heir of the deceased, unlike the wrongful death claim where you only need to be a parent, child, or spouse. It is also important to have an attorney that knows how to handles these claims and will be working for you to help you achieve justice. If you would like to begin the process of filing a claim, or just want to talk and ask questions about your case, call us at (855)326-0000. No case is insignificant, and our experienced and patient attorneys would be happy to speak with you about any of your concerns, or if needed, refer you to someone else who can help.

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