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In Texas, only the surviving spouse, children and parents of the person who died may bring a wrongful death claim. Siblings and grandparents cannot. If none of those individuals has begun an action within three calendar months after the death, the executor or administrator must bring it, unless all of them ask that it not be brought.
That is Chapter 71 of the Civil Practice and Remedies Code, and it is narrower than most families expect.
There is a second point families are rarely told, and it is usually worth a great deal of money.
There are two separate claims, not one. The wrongful death claim belongs to the spouse, children and parents, and compensates them for their 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.
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 end it. The burdens of proof are different.
What a claim does need is evidence. Most of it is not yours: the crash records, the vehicle’s own data, any camera coverage, and the records of whoever owned or maintained the vehicle. 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 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.
Adopted children and adoptive parents 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 for conduct described as certain felonies, including intoxication manslaughter under Penal Code Section 49.08. For a family whose relative was killed by a drunk driver, that exception is the single most important provision in the chapter.
Under Section 16.003(b), suit for an injury resulting in death must be brought not later than two years after the cause of action accrues, and it accrues on the death of the injured person. Limitations are tolled for a claimant who is younger than 18 or of unsound mind, under Section 16.001.
Chapter 101, the Texas Tort Claims Act waives immunity only narrowly, principally for 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.
Notice. Section 101.101(a) requires notice within six months. Section 101.101(b) then ratifies shorter periods set by a city charter, and the City of Houston requires written, verified notice within 90 days. Any published statement that families always have six months to notify a Texas city is wrong and has cost people their claims.
Caps. Section 101.023 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.
There is no average settlement figure on this page 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 actually available. A range presented as an average tells a grieving family nothing true about their own case.
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.
Two claims means two sets of damages. The wrongful death claim compensates the spouse, children and parents for lost support, lost companionship and their own mental anguish. The survival claim compensates the estate for what the deceased person endured before death. Leaving the survival claim out is a common and expensive omission.
Loss of inheritance is recoverable in Texas, and it is proven with economic evidence about what the person would likely have accumulated and left, not with a guess.
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, which does not prove causation.
The first conversation is free, it is confidential, and it does not commit you to anything.
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 deadlines run from the day of the death. The three month period after which the estate representative must act, and, if a government entity is involved, a notice period that may be as short as 90 days. Both are shorter than the two year limitations period and both are missed regularly.
Evidence in a fatality case disappears quickly. Vehicles are repaired or salvaged, electronic control module data is overwritten, surveillance video is deleted, and scenes are cleared. A preservation letter can go out immediately and commits your family to nothing.
Schiffer Law Firm keeps a deliberately small caseload, in Houston and across Texas. There is no attorney’s fee unless there is a recovery.
Call 713-521-0059.
Only the surviving spouse, children and parents of the deceased, under Section 71.004. Adopted children and adoptive parents are included. Siblings, grandparents and unmarried partners cannot file.
Under Section 71.004(c), 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, unless 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.
Two years from the date of death under Section 16.003(b). If a government entity is responsible, a separate and much shorter written notice deadline also applies, and in the City of Houston it is 90 days.
Yes. Section 101.023 caps liability at $250,000 per person and $500,000 per occurrence for the state and for a municipality, and at $100,000 per person and $300,000 per occurrence for other units of local government, including counties.
No. A wrongful death claim does not require an arrest, a charge or a conviction, and an acquittal does not end it. The two systems ask different questions and apply different burdens of proof. What a claim does need is evidence, and most of it is in the crash records, the vehicle’s own data and any camera coverage, which are on an automatic timer.
