Who Can File a Wrongful Death Claim

Who counts as a statutory beneficiary?

Section 71.004(a) 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.”

That is three categories: the spouse, the children and the parents. If you are one of them, you are on the list. The statute calls the benefit exclusive, so the list is where the wrongful death claim begins and ends.

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. If another family member has already filed, that action is brought for the benefit of all of you, so ask how your share is being handled.

Can a brother, sister or grandparent recover?

Under Chapter 71, a brother or sister has no wrongful death claim in Texas. The statute does not say so in those words. It reaches 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. That can feel deeply unfair when you were the person closest to the one who died.

For siblings and others outside the list, the practical route into the case, if there is one, runs through the survival claim rather than the wrongful death claim. The next sections explain the difference.

What happens if no one files within three months?

Section 71.004(c) provides: “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.”

The period is three calendar months, not ninety days, and because the statute uses the word “shall”, the duty falls on the executor or administrator. The only way out it describes is a request from all of the beneficiaries not to bring it. If your family is divided about whether to sue, this rule can matter a great deal.

How is the wrongful death claim different from the survival claim?

Two different claims can arise from the same death. Mixing them up is a common mistake.

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.” Under Section 71.010(b), the jury divides the damages in shares among the beneficiaries entitled to recover who are alive at that time. Section 71.011 provides that those damages are not subject to the debts of the person who died.

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 or because of the death of a person liable for the injury.” 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 your family member could have recovered had they lived. That generally means what they suffered and lost between the injury and the death. It is an asset of the estate, so the estate’s creditors can reach it in a way they cannot reach the wrongful death recovery.

Commonly covered expenses and damages include:

• Loss of companionship and society
• Mental anguish of the statutory beneficiaries
• Loss of financial support and services
• Funeral and burial expenses
• The estate survival claim for the decedent’s own losses

The first four categories come from case law rather than statutory text; the survival claim comes from Section 71.021. Chapter 71 says only “in an amount proportionate to the injury resulting from the death.” The familiar categories come from courts construing it.

What conditions and damages rules does the statute set?

One precondition is easy to miss. 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 person who died could not have sued, your family cannot bring the wrongful death claim.

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.” Exemplary damages are capped by statute under Section 41.008 of the Civil Practice and Remedies Code, with exceptions the statute lists.

How long does your family have to file?

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.” The clock generally runs from the death, not from the injury.

That matters if your family member survived for weeks or months before dying. Other deadlines and exceptions can apply, so ask about your dates early.

Primary sources

• Tex. Civ. Prac. & Rem. Code ch. 71 (wrongful death and survival)
• Tex. Civ. Prac. & Rem. Code ch. 16 (limitations)
• Tex. Civ. Prac. & Rem. Code ch. 41 (damages)

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.