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Families are often surprised by this, and the surprise usually arrives at a bad moment. Texas law is narrow about who may recover for a death, and the answer is not “the family.”
Section 71.004(a) of the Civil Practice and Remedies Code provides that “An action to recover damages as provided by this subchapter is for the exclusive benefit of the surviving spouse, children, and parents of the deceased.”
Three categories. Spouse. Children. Parents. The list is exclusive.
Section 71.004(b) provides that any one of them may bring the action, or one or more may bring it for the benefit of all. There is one lawsuit, not one per person.
A brother or sister has no wrongful death claim in Texas.
The statute does not say so in those words. It achieves that result by listing who may recover and stopping there. Grandparents are likewise outside the list, as are stepchildren who were never adopted, and unmarried partners.
For siblings and others outside the list, the practical route into the case, if there is one, runs through the survival claim described below rather than through the wrongful death claim.
Section 71.004(c) provides that “If none of the individuals entitled to bring an action have begun the action within three calendar months after the death of the injured individual, his executor or administrator shall bring and prosecute the action unless requested not to by all those individuals.”
Three calendar months. Not ninety days. And note the duty is written as mandatory, subject only to a request from all of the beneficiaries not to bring it.
Two different claims arise from the same death, and conflating them is the most common mistake families make.
The wrongful death claim belongs to the spouse, children and parents in their own right, for their own losses from the death. Section 71.010(a) provides that “The jury may award damages in an amount proportionate to the injury resulting from the death,” apportioned among the beneficiaries entitled to recover. Section 71.011 provides that those damages are not subject to the deceased’s debts.
The survival claim is the decedent’s own claim, carried forward. Section 71.021(a) provides that “A cause of action for personal injury to the health, reputation, or person of an injured person does not abate because of the death of the injured person.” Section 71.021(b) provides that it “survives to and in favor of the heirs, legal representatives, and estate of the injured person.”
The survival claim recovers what the decedent could have recovered had he lived, which generally means what he suffered and lost between the injury and the death. It is an asset of the estate, which means it is exposed to the estate’s creditors in a way the wrongful death recovery is not.
Anyone describing itemized lists of damages for either claim is describing case law rather than statutory text. Chapter 71 says only “in an amount proportionate to the injury resulting from the death.” The familiar categories come from courts construing it.
Section 71.003(a) provides that the subchapter “applies only if the individual injured would have been entitled to bring an action for the injury if the individual had lived or had been born alive.” If the decedent could not have sued, the family cannot sue for the death.
Section 71.009 provides that “When the death is caused by the wilful act or omission or gross negligence of the defendant, exemplary as well as actual damages may be recovered.”
Every statute and case linked above was read at its primary source. Texas statutes change every legislative session and case law is constantly changing.
This page is general information about Texas law. It is not legal advice about your situation, and reading it does not create an attorney-client relationship.
Section 16.003(b) provides two years for “an action for injury resulting in death,” and specifies that “The cause of action accrues on the death of the injured person.” Accrual runs from the death, not from the injury, which matters where someone survived for a period before dying.
Schiffer Law Firm represents families in wrongful death and survival claims in Houston and across Texas.
There is no charge to talk, and no attorney’s fee unless there is a recovery.
Call 713-521-0059.
This page is general information about Texas law, not legal advice about your situation, and reading it does not create an attorney-client relationship.
The surviving spouse, children and parents, under Section 71.004 of the Civil Practice and Remedies Code.
No. Siblings are not statutory beneficiaries under Chapter 71.
A separate claim belonging to the estate for what the decedent suffered before death, under Section 71.021.
Generally two years from the date of death under Section 16.003.
