Texas Wrongful Death: Who Can File, the Deadline, What Damages the Law Allows, and How a Survival Claim Differs

A Texas wrongful death claim is a civil lawsuit for actual damages when a person dies from an injury caused by someone else's "wrongful act, neglect, carelessness, unskillfulness, or default," in the words of Texas Civil Practice and Remedies Code §71.002 (opens in a new tab). Under §71.004 (opens in a new tab), the surviving spouse, children and parents may bring it. The general deadline is two years, and for a death the clock starts on the date of death under §16.003 (opens in a new tab). Claims involving medical care, a government body or a workplace can follow different rules. A survival action is a separate claim that carries on the deceased person's own injury case.

Who can bring a wrongful death claim in Texas

Section 71.004 (opens in a new tab) names three groups: the surviving spouse, the surviving children and the surviving parents. One beneficiary may bring the action for the benefit of all of them when the statute permits.

If none of those beneficiaries files within three months after the death, the executor or administrator of the estate may bring the action, unless a beneficiary asks that it not be brought. If the estate has not been opened yet, our overview of the Texas probate process explains how an executor or administrator is appointed.

Siblings, grandparents and unmarried partners are not on the §71.004 list. That is the wrongful death statute only. Workers' compensation death benefits run under a separate system that can include different dependents, and §71.003 (opens in a new tab) states that the wrongful death subchapter does not take away a right to sue for a death under another law.

The deadline to file

Section 16.003 (opens in a new tab) generally requires a personal injury suit to be filed no later than two years after the claim accrues. For an injury that results in death, subsection (c) says the claim accrues on the date of death, not the date of the injury. Chapter 71 does not set a separate general filing period, so the two-year rule is the general reference for a Texas wrongful death claim, subject to exceptions and specialized statutes. Our guide to the Texas statute of limitations for personal injury covers the exceptions to the two-year rule.

Two kinds of cases often run on different timelines, and both are worth checking early.

Deaths involving medical care. Health care liability claims fall under Chapter 74 of the Civil Practice and Remedies Code (opens in a new tab). Section 74.251 generally requires the claim to be filed within two years from the occurrence or the completion of the treatment, under the statute's own language, and it also contains a ten-year repose provision with limited exceptions. Section 74.303 sets a separate damages limit for a wrongful death or survival action against a physician or health care provider.

Deaths involving a government body. For a claim against a governmental unit, such as a city, county or state agency, §101.101 (opens in a new tab) generally requires written notice no later than six months after the incident. The notice must reasonably describe the injury or death, the time and place, and the incident. The requirement does not apply when the governmental unit has actual notice of the death as the statute describes, and a city charter or ordinance may set a shorter notice period where the law allows.

What damages Texas law allows

Wrongful death damages compensate the beneficiaries for their own losses from the death. The categories Texas courts recognize include:

• Pecuniary loss, meaning the financial contributions and benefits the beneficiary would have received.
• Loss of companionship and society.
• Mental anguish.
• Loss of inheritance.

Under §71.010 (opens in a new tab), the jury may award damages in an amount proportionate to the injury resulting from the death, and the damages are divided among the entitled family members in the shares the jury finds. A Texas Supreme Court opinion (opens in a new tab) recognizes that mental anguish and loss of companionship are distinct from economic loss, and the Court rejected a requirement that the ratio between economic and noneconomic damages be considered, because emotional loss does not track the deceased person's income. Texas law sets no fixed dollar schedule for these categories. To learn how courts treat noneconomic harm generally, read our guide on what pain and suffering means in a lawsuit.

Exemplary damages

Exemplary damages are a separate category. Chapter 41 (opens in a new tab) generally requires clear and convincing evidence that the harm resulted from fraud, malice or gross negligence. Section 41.001 defines gross negligence as an act or omission involving an extreme degree of risk, viewed objectively, along with actual awareness of that risk and conscious indifference to it.

Section 41.008 generally limits exemplary damages to the greater of two amounts: two times the economic damages plus an amount equal to the noneconomic damages found by the jury, up to $750,000, or $200,000. The statute has exceptions. Subsection (c) removes the general limit when the exemplary damages are based on conduct described as a felony in specified Penal Code sections and committed knowingly or intentionally, subject to its own conditions.

How a survival action differs from a wrongful death claim

Section 71.021 (opens in a new tab) says a personal injury claim does not end because the injured person dies. It survives to the person's heirs, legal representatives or estate. A survival action is the deceased person's own injury claim, carried on after death. It can include damages tied to that person's injury before death, such as pain and mental anguish they experienced, medical expenses and other damages the underlying claim would have covered. Whether funeral expenses are recoverable depends on the claim and the proof.

A wrongful death claim, by contrast, belongs to the spouse, children and parents and compensates their losses from the death. Both claims can come from the same event, but they are legally distinct and the money can go to different people.

When the death happened at work

If the employer carries workers' compensation coverage, Labor Code §408.001 (opens in a new tab) makes workers' compensation benefits the exclusive remedy against the employer for the employee's death. The statute keeps one exception: the surviving spouse or heirs may seek exemplary damages when the death was caused by the employer's intentional act or omission or by its gross negligence.

The Texas Department of Insurance (opens in a new tab) states that death benefits may be paid to an eligible surviving spouse, minor children, certain college students, dependent grandchildren, other dependent family members and nondependent parents, as the program describes. A beneficiary generally files DWC Form-042 with the Division of Workers' Compensation or the insurance carrier within one year after the death. TDI states that benefits are generally 75 percent of the employee's average weekly wage, subject to the statute and benefit limits, and its page also describes burial benefits.

How fault affects the claim

Texas uses proportionate responsibility. Under §33.001 (opens in a new tab), a claimant whose percentage of responsibility is greater than 50 percent cannot recover damages. When recovery is allowed, damages are reduced according to the percentages assigned. Section 33.003 (opens in a new tab) requires the jury or judge to assign a percentage to each claimant, defendant, settling person and responsible third party who caused or contributed to the harm. Because the chapter's definition reaches conduct that contributed to a death, the deceased person's own conduct can affect a wrongful death or survival recovery. Our guide on modified comparative negligence in Texas explains how shared fault is weighed.

When a beneficiary is a minor or an incapacitated adult

Texas Rule of Civil Procedure 173 (opens in a new tab) requires the court to appoint a guardian ad litem, a person appointed to protect the interests of a minor or a person under legal incapacity, when that party has no next friend or guardian in Texas or when the next friend or guardian appears to have an adverse interest. An attorney may serve in that role, and the guardian ad litem's compensation must be reasonable and necessary under Rule 173.6.

Texas also keeps a judicial settlement database (opens in a new tab) for personal injury and wrongful death settlements in which a minor or incapacitated person is a beneficiary. Access is limited to specified parties, attorneys, guardians, next friends and guardians ad litem. Whether the money goes into a trust, a structured settlement, a restricted account or another arrangement depends on the court's order, the Estates Code and the protected person's circumstances.

When the death resulted from a crime

A civil wrongful death claim does not depend on a criminal prosecution; §71.002 defines liability by the wrongful act or neglect that caused the death. Separately, the Texas Attorney General's Crime Victims' Compensation Program (opens in a new tab) may help eligible victims and claimants with crime-related costs, including medical care, counseling, lost wages, funeral and burial costs and loss of support, under program rules. Its forms and publications page (opens in a new tab) lists the application in English and Spanish.

Where to find information and legal help

The State Bar of Texas runs a statewide Lawyer Referral and Information Service (opens in a new tab) that can connect callers with a lawyer or another resource. It states that the first consultation with a participating lawyer lasts up to 30 minutes for no more than $20, and that it can assist Spanish-speaking callers. The State Bar also lists certified lawyer referral services (opens in a new tab) around the state and points people seeking free or reduced-fee help to TexasLawHelp.org and local legal aid.

When a lawyer works on a contingent fee, Texas Disciplinary Rule of Professional Conduct 1.04 (opens in a new tab) requires a contingent fee agreement to be in writing, state how the fee is figured, give any different percentages for settlement, trial or appeal, explain expenses and say whether they come out before or after the fee is calculated. At the end, the lawyer must give a written statement showing the outcome and the calculation. Our guide on how much a personal injury lawyer costs covers fee agreements further.

Records that commonly matter include the death certificate, proof of the family relationship, and any accident, medical, employment, insurance and expense records. Keeping them together makes it easier to answer the deadline and beneficiary questions with a lawyer or referral service.

Frequently asked questions about Texas wrongful death claims

Can a sibling or an unmarried partner file a Texas wrongful death claim?

They are not on the beneficiary list in §71.004 (opens in a new tab), which names the surviving spouse, children and parents. Another law may give a separate right, and workers' compensation death benefits use their own list of eligible dependents.

Does the two-year deadline start on the day of the accident or the day of death?

For an injury that results in death, §16.003(c) (opens in a new tab) says the claim accrues on the date of death. Medical care claims and claims against a government body can have their own timing rules.

How is the money divided among family members?

Under §71.010 (opens in a new tab), the jury divides wrongful death damages among the entitled family members in the shares it finds. When a beneficiary is a minor or incapacitated, the court's order governs how that person's share is protected.

Can the family sue the employer after a workplace death?

If the employer has workers' compensation coverage, §408.001 (opens in a new tab) generally makes those benefits the exclusive remedy against the employer. The surviving spouse or heirs may still seek exemplary damages if the death was caused by the employer's intentional act or gross negligence.

Next step

Because the deadline and notice rules depend on who may be responsible, the next step is usually to confirm which rules apply to the facts. You can find Texas personal injury and wrongful death lawyers in the Counselado directory and confirm each lawyer's license with the State Bar of Texas before reaching out.