A look at wrongful death claims in Texas, including who can file the lawsuit, types of potential damages, and more.
Like all states, Texas has laws that apply to wrongful death claims. The law is complex and can be difficult to understand. But the idea behind it is simple: The survivors of a person killed by someone else's wrongful conduct can sue for compensation (called "damages") for injuries they suffer because of the death. We'll explain Texas's wrongful death law, and we'll also have a look at a similar kind of lawsuit called a "survival" action.
(Here's an online version of the Texas wrongful death laws, Tex. Civ. Prac. & Rem. Code §§ 71.001 to 71.012 (2023).)
What Is "Wrongful Death" in Texas?
In Texas, a "wrongful death" happens when:
- an injury causes a person's death or a fetus's failure to be born alive
- the injury is caused by another person's or entity's "wrongful act, neglect, carelessness, unskillfulness, or default," and
- the injured person would have been entitled to file a personal injury lawsuit had they lived or been born alive.
(Tex. Civ. Prac. & Rem. Code §§ 71.001 to 71.003 (2023).)
As with personal injury claims in general, many types of events can be the basis for a wrongful death lawsuit, including:
- negligence-based incidents (such as car accidents, defective products, and dangerous premises)
- medical malpractice, or
- intentional acts (including crimes).
The Difference Between a Criminal Homicide Case and a Wrongful Death Case
The same facts can give rise to both a criminal homicide prosecution and a wrongful death case. The O.J. Simpson case is a famous example. Simpson was found not guilty of murder in the deaths of Nicole Brown Simpson and Ron Goldman. But in a later wrongful death suit, he was ordered to pay damages to Brown Simpson's and Goldman's families.
The Standard of Proof
One big difference between a criminal homicide case and a wrongful death case is the standard of proof. In a homicide case, the government must establish the accused person's guilt "beyond a reasonable doubt," the highest standard of proof under the law.
In a wrongful death case, the standard of proof is significantly lower. The plaintiff must prove the defendant's liability only by a "preponderance of the evidence." Under this standard, the plaintiff (the party who filed the lawsuit) need only show that it's slightly more likely than not that the defendant (the party being sued) caused the death.
The Penalty
In a successful wrongful death case, the court orders the defendant to pay damages to the deceased person's survivors. By contrast, in a successful criminal prosecution, typical penalties include jail or prison time, fines paid to the state, or probation.
(Learn more about proving liability in a wrongful death case.)
The Difference Between a Wrongful Death Case and a Survival Case
Wrongful death and survival actions often are filed together because both relate to the same event: An injury that caused a death. We'll explain the difference between these actions, but here's a simple shorthand that might help:
- a survival action pays damages for the deceased person's injuries between the time of injury and the time of death, and
- a wrongful death suit pays damages for the survivors' injuries from the date of death onward.
What a Wrongful Death Action Covers
A wrongful death suit pays damages to the deceased person's survivors for injuries they suffer because of the death. For example, survivors typically ask for damages for the income and financial support they would have received from the deceased person had the death not happened. Damages are paid for the survivors' injuries, not the deceased person's injuries.
What a Survival Action Covers
A survival action, by contrast, is a claim that the deceased person could have brought to collect damages for their own personal injuries had they not died. The survivors or the estate of the deceased person can bring a survival action. (Tex. Civ. Prac. & Rem. Code § 71.004 (2023).)
Suppose the deceased person was badly injured in a car wreck but lingered for two weeks before dying. A survival action would ask for compensation for the injuries the deceased person suffered—things like medical bills, lost income, pain and suffering, and emotional distress—between the date of the injury and the date of death.
Who Can File a Wrongful Death Lawsuit in Texas?
Under Texas law, the deceased person's surviving spouse, children, and parents—or one or more of those individuals on behalf of them all—are eligible to file a wrongful death lawsuit.
If the surviving spouse, children, or parents do not file a wrongful death claim within three months of the date of death, the personal representative (sometimes called the "executor") or administrator of the deceased person's estate must file the claim instead, unless all of the surviving family members listed above specifically request that the wrongful death lawsuit not be filed. (Tex. Civ. Prac. & Rem. Code § 71.004 (2023).)
What Types of Damages Are Available in a Texas Wrongful Death Case?
In a successful Texas wrongful death case, damages are awarded to the deceased person's surviving spouse, children, and parents for their losses stemming from the death. Damages in a Texas wrongful death case can compensate for a range of injuries the survivors might experience, including:
- lost income or other financial support
- the value of lost household services the deceased would have provided
- mental pain and anguish experienced by the survivors
- lost love, companionship, comfort, and society, and
- the value of any lost savings or inheritance.
In addition, exemplary damages (sometimes called "punitive damages") can be awarded in a Texas wrongful death case, but only if the death resulted from a "wilful act or omission or gross negligence." (Tex. Civ. Prac. & Rem. Code § 71.009 (2023).) Exemplary damages aren't intended to compensate the family for losses associated with the death, but to punish the wrongdoer and deter others from engaging in similar conduct.
(Learn more about wrongful death lawsuit damages.)
What Is the Time Limit for Filing a Texas Wrongful Death Lawsuit?
There's a time deadline for filing all personal injury cases in court, including wrongful death lawsuits. This deadline is called the "statute of limitations." In Texas, the wrongful death statute of limitations is two years from the date of the person's death. (Tex. Civ. Prac. & Rem. Code § 16.003 (2023).)
What does this mean? If you want to pursue a Texas wrongful death lawsuit, you must file it in court within the two-year time limit. If you try to file suit after the statute of limitations expires, the court probably will have no choice but to dismiss your case.
Do I Need a Lawyer for a Texas Wrongful Death Lawsuit?
If you plan to pursue a Texas wrongful death claim, you should have a lawyer. Wrongful death lawsuits can be factually complex, often involve difficult legal issues, and are likely to require expert witnesses to provide evidence concerning the values of different damages. This isn't the kind of case you want to handle on your own.
An experienced Texas wrongful death lawyer understands Texas law, knows how to put together a winning case, and will help you get the best possible result for your wrongful death claim. Here's how to find an experienced wrongful death attorney in your area.
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