Wrongful Death Claims in Texas

A Texas wrongful death claim is for the exclusive benefit of three groups of family members: the surviving spouse, the children, and the parents of the person who died. Any one or more of them can bring it for the benefit of all. If none of them has started it within three calendar months after the death, the executor or administrator of the estate must bring it, unless all of them ask the executor not to. The suit must be filed within two years, and for a death the two years run from the date of death.

Those rules come from Chapter 71 of the Civil Practice and Remedies Code and from the limitations statute in Chapter 16. This guide covers who may sue, the timeline, how a wrongful death claim differs from the separate survival claim, and what the statutes say about how the case is tried.

When a death gives rise to a claim

Section 71.002(b) makes a person liable for damages from an injury that causes a death if the injury was caused by that person's, or the person's agent's or servant's, "wrongful act, neglect, carelessness, unskillfulness, or default." Subsection (c) applies the same liability to "a proprietor, owner, charterer, or hirer of an industrial or public utility plant or of a railroad, street railway, steamboat, stagecoach, or other vehicle for the transportation of goods or passengers," and subsection (d) adds receivers, trustees and others in charge of those operations.

The statute also sets limits on when the claim exists:

• It 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" (71.003(a)). The family's claim depends on the deceased person having had a claim of their own.
• It applies whether the injury happened inside or outside Texas (71.003(b)).
• "Individual" includes an unborn child at every stage of gestation, and "death" includes the failure to be born alive (71.001(3), (4)). Section 71.003(c) excludes certain claims for the death of an unborn child, including claims against the mother and claims arising from lawful medical procedures and practice.
• A claim is not barred because the death was caused by a felonious act or because a criminal proceeding may follow (71.006).

Who may bring the claim

Section 71.004(a) states that the action is "for the exclusive benefit of the surviving spouse, children, and parents of the deceased." The word "exclusive" means other relatives, such as siblings or grandparents, are not on that list. Under section 71.004(b), the spouse, children and parents may bring the action together, or "one or more of those individuals may bring the action for the benefit of all."

The estate's representative steps in only if the family does not act. Section 71.004(c) provides that if none of the eligible family members "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." Even then, the claim is still for the family's benefit under subsection (a).

The timeline in order

1. The death

   Under section 16.003(b), in "an action for injury resulting in death," the cause of action "accrues on the death of the injured person." That date starts the limitations clock, whatever the date of the original injury.

2. The first three calendar months

   The surviving spouse, children and parents, or any of them, may file. Nothing in section 71.004 requires the estate's representative to act during this window.

3. After three calendar months with no suit

   The executor or administrator "shall bring and prosecute the action," unless every eligible family member asks that it not be brought (71.004(c)).

4. Two years after the death

   Section 16.003(b) requires the suit to be filed within two years of the day the claim accrued, which for a death is the day of death. When that final day lands on a Saturday, Sunday or holiday, section 16.072 carries the period over to the following day county offices are open.

Chapter 71 itself sets no separate filing deadline for wrongful death. Other rules can affect how limitations runs in a particular case, and the guide to the deadline to sue for an injury covers the tolling provisions in Chapter 16.

The survival claim, and how it differs

A wrongful death claim compensates the family for its own loss. A survival claim is the deceased person's own injury claim, carried forward. Section 71.021(a) provides that a cause of action for personal injury "does not abate because of the death of the injured person or because of the death of a person liable for the injury." Under section 71.021(b), it "survives to and in favor of the heirs, legal representatives, and estate of the injured person," and it survives against the liable person and that person's legal representatives. Section 71.021(c) lets the suit go forward as if the liable person were alive.

The death rule in the last row is section 16.062. The death of a person "against whom or in whose favor there may be a cause of action" suspends limitations "for 12 months after the death." If an executor or administrator qualifies before those 12 months end, limitations begins to run at qualification (16.062(b)).

How the case proceeds under the statutes

Chapter 71 sets several rules for how a wrongful death case is tried and paid:

• Damages. "The jury may award damages in an amount proportionate to the injury resulting from the death" (71.010(a)). Section 71.009 provides that exemplary as well as actual damages "may be recovered" when "the death is caused by the wilful act or omission or gross negligence of the defendant." Other statutes not covered here set further conditions.
• Dividing the award. The damages are divided "in shares as found by the jury in its verdict" among the family members entitled to recover who are alive at that time (71.010(b)).
• Creditors. Wrongful death damages are not subject to the deceased's debts (71.011).
• Evidence about the surviving spouse. Evidence of an actual ceremonial remarriage is admissible if true, but the defense may not mention a common-law marriage, an extramarital relationship, or the surviving spouse's marital prospects (71.005).
• Death of an unborn child. In a claim for the death of an unborn child, the plaintiff must provide medical or other evidence that the mother was pregnant at the time of the death (71.0055).
• Estates of people who lived outside Texas. When the executor or administrator of a nonresident's estate is the plaintiff, a foreign personal representative who has complied with Chapter 503 of the Estates Code does not have to apply for ancillary letters testamentary to bring the action (71.012). Section 71.022 sets the same rule for survival claims.
• If the defendant dies. The defendant's executor or administrator may be made a defendant, and a judgment for the plaintiff is paid in due course of administration (71.008).
• Release agreements. An agreement between the owner of a vehicle, plant or machinery and the entity operating it does not release either from wrongful death liability (71.007).

Fault sharing applies here too. Section 33.011(1) counts the deceased as a claimant, which means the judge or jury gives the deceased a share of responsibility under section 33.003, as explained in the guide to shared fault.

For how a claim moves from an incident toward settlement more generally, see the injury and accident settlements hub and the guide to car accident claims. Other topics are covered across the North Texas disputes and settlements guides. This page is written from the text of the statutes cited below.

Sources

1. Texas Civil Practice and Remedies Code sections 71.001 to 71.003
2. Texas Civil Practice and Remedies Code section 71.004
3. Texas Civil Practice and Remedies Code sections 71.005 to 71.011
4. Texas Civil Practice and Remedies Code section 71.021
5. Texas Civil Practice and Remedies Code section 16.003
6. Texas Civil Practice and Remedies Code sections 16.062 and 16.072
7. Texas Civil Practice and Remedies Code section 33.011