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In Texas, only the surviving spouse, children and parents of the person who died can recover in a wrongful death claim. Siblings and grandparents are not in that group. That is Chapter 71 of the Civil Practice and Remedies Code, and it is narrower than most families expect.
There are also two separate claims, not one, and families are rarely told that. Two periods start at the death. After three months, the estate’s executor or administrator must bring the claim if no family member has. And if a government entity is involved, notice may be due in as little as 90 days. What cannot wait is the evidence, which is on an automatic timer. A preservation letter can go out while the records still exist. Call 713-521-0059.
If you are a spouse, child or parent, the wrongful death claim belongs to you, and it compensates you for your own losses. The survival claim belongs to the estate, and compensates what the person who died suffered between the injury and death. They arise from the same event, and they are not the same claim.
Two claims means two sets of damages. Damages your family may recover include:
Loss of inheritance is recoverable in Texas. You prove it with economic evidence about what the person would likely have accumulated and left, not with a guess.
We do not publish an average settlement figure because there is no true one. Settlement values turn on the earning capacity of the person who died, the strength of liability, the conduct involved, and the insurance and assets available. A published average tells you nothing true about your own case.
Medical expenses are measured by what was actually paid or incurred under Section 41.0105. Cost and necessity can be established by affidavit under Section 18.001, unless a controverting affidavit is properly served. The affidavit does not prove causation.
These claims arise in many settings, including child drowning, defective products and dangerous drugs, police shootings, and fatal slip and falls.
Section 71.002 makes a person liable for damages arising from an injury causing death where the injury was caused by that person’s, or that person’s agent’s or servant’s, wrongful act, neglect, carelessness, unskillfulness or default. That is broader than the word negligence suggests, and it reaches conduct that no criminal case ever touched.
A wrongful death claim does not require an arrest, a charge or a conviction, and an acquittal does not by itself end it. The burdens of proof are different.
What your claim does need is evidence, and most of it is not in your hands. Depending on how the death happened, it may be crash records and vehicle data, camera coverage, maintenance records, or the records of the property owner, facility or company involved. Those records are on an automatic timer, and the first letter matters more than the first lawsuit.
Section 71.004(a) makes the action for the exclusive benefit of the surviving spouse, children and parents. Any one of them may bring it for the benefit of all.
Section 71.004(c) then covers delay. It provides that if none of them has begun the action within three calendar months after the death, the executor or administrator shall bring and prosecute it, unless requested not to by all of them. That period does not by itself end the family’s own claim, which still runs on the limitations period.
If you are an adopted child or an adoptive parent, you are included. Siblings, grandparents, aunts, uncles and unmarried partners are not, however close they were.
Section 71.021 provides that a cause of action for personal injury does not abate because of the death of the injured person, and survives to and in favor of the heirs, legal representatives and estate.
The survival claim recovers what the deceased person would have recovered: medical expenses, the conscious pain and mental anguish suffered before death, and funeral expenses. Where death was not instantaneous, this claim can be substantial. It is also the claim most often left out of a demand.
Section 71.009 provides that where death is caused by the willful act or omission or gross negligence of the defendant, exemplary as well as actual damages may be recovered. Under Section 41.003 that requires clear and convincing evidence of fraud, malice or gross negligence.
Section 41.008 caps exemplary damages in the ordinary case. Section 41.008(c) removes the cap where the claim is based on one of the listed felonies committed knowingly or intentionally. Intoxication manslaughter under Penal Code Section 49.08 is on the list and need not be knowing or intentional. The exception reaches only the defendant whose conduct it was. If your relative was killed by a drunk driver, that exception can be the most important provision in the chapter.
In most cases, suit must be filed within two years after the day the claim accrues. For a death claim, Section 16.003(b) runs the period from the date of death. Under Section 16.001, limitations are generally tolled only where the person was under 18 or of unsound mind when the claim accrued.
If a government entity is responsible, the real deadline is much shorter. Chapter 101, the Texas Tort Claims Act, waives immunity only narrowly. It applies principally to injury or death arising from the operation or use of a motor-driven vehicle or equipment, or from a condition or use of tangible personal or real property. Section 101.057 excludes claims arising out of intentional torts.
Section 101.101(a) gives any governmental unit notice within six months. Under Section 101.101(b), a city charter period permitted by law governs where it applies, and the City of Houston requires written, verified notice within 90 days. Section 101.101(c) removes the notice requirement where the governmental unit had actual notice of the death, but that should never be assumed. Do not assume you have six months to notify a Texas city, because missing a shorter charter deadline can cost your family the claim.
Section 101.023 also caps damages. It sets $250,000 per person and $500,000 per occurrence for the state and for a municipality. For other units of local government, including counties, the cap is $100,000 per person and $300,000 per occurrence. These are not one number.
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.
Evidence in a fatality case disappears quickly, and you usually do not control it. Vehicles are repaired or salvaged, electronic control module data is overwritten, surveillance video is deleted, and scenes are cleared. A preservation letter sent early is often the difference between having that evidence and losing it.
We will tell you whether there is a claim, who under Texas law is allowed to bring it, and what it would involve. If there is no claim, we will say that and explain why.
Two periods start at the death. One is the three calendar months in Section 71.004(c), after which the estate representative must bring the claim if no family member has. The other, if a government entity is involved, is a notice period that may be as short as 90 days. We start with both. A preservation letter can go out immediately and commits your family to nothing.
Schiffer Law Firm is a Houston personal injury firm with 50 plus years of combined experience representing injured people across Texas.
There is no charge to talk, and no attorney’s fee unless there is a recovery.
Call 713-521-0059.
Only the surviving spouse, children and parents of the deceased can recover, under Section 71.004. If none of them has filed within three calendar months, the executor or administrator must bring the claim. If you are an adopted child or an adoptive parent, you are included. Siblings, grandparents and unmarried partners are not in that group.
Section 71.004(c) answers that. If none of the individuals entitled to bring the action has begun it within three calendar months after the death, the executor or administrator shall bring and prosecute it. The exception is where all of those individuals request that it not be brought.
A wrongful death claim belongs to the spouse, children and parents and compensates their own losses. A survival claim belongs to the estate under Section 71.021 and compensates what the person who died suffered between injury and death. Both can be brought from the same event.
In most cases, two years from the date of death under Section 16.003(b). If a government entity is responsible, a separate and much shorter notice deadline can also apply unless the government already had actual notice, and in the City of Houston it is written notice within 90 days.
Generally, yes, for a claim under the Tort Claims Act. Section 101.023 caps liability at $250,000 per person and $500,000 per occurrence for the state and for a municipality. For other units of local government, including counties, it caps liability at $100,000 per person and $300,000 per occurrence.
No. A wrongful death claim does not require an arrest, a charge or a conviction, and an acquittal does not by itself end it. The two systems ask different questions and apply different burdens of proof. What your claim does need is evidence, such as crash and vehicle data, camera coverage or the records of the company involved, and much of it is on an automatic timer.