Texas Wrongful Death Attorney

Wrongful Death: What You Need to Know

The Legal Framework for Wrongful Death Claims in Texas

When someone dies because of another party’s negligence, recklessness, or intentional misconduct, the surviving family members may have a legal right to seek compensation through a wrongful death claim. Texas law provides a specific statutory framework that governs who can bring such claims, what damages are available, and the deadlines that apply. Do not attempt to go at this alone: retain a Texas wrongful death attorney like Bearstone Law, PLLC.

As a Texas wrongful death attorney, Bearstone Law, PLLC represents families who have lost loved ones due to the misconduct of others. Whether the death resulted from a catastrophic accident, medical negligence, a defective product, or any other preventable cause, these cases require compassionate yet aggressive legal representation grounded in a thorough understanding of Texas wrongful death law.

Survival Actions vs. Wrongful Death Claims

What Is a Survival Action?

A survival action is a separate and distinct cause of action from a wrongful death claim. While both arise from the same fatal incident, they compensate different harms, are owned by different parties, and serve different legal purposes.

A wrongful death claim compensates the surviving family members for their own losses resulting from the death — such as loss of companionship, loss of financial support, and mental anguish. The wrongful death claim belongs to and is “owned” by the statutory beneficiaries (surviving spouse, children, and parents) based on the nature of their relationship with the decedent at the time of death.

A survival action, by contrast, compensates the estate of the deceased for the injuries and damages the decedent personally suffered between the time of injury and the time of death. The survival action belongs to the decedent’s estate and is brought by the personal representative (executor or administrator) of that estate. See Tex. Civ. Prac. & Rem. Code § 71.021.

Key Differences Between Survival Actions and Wrongful Death Claims

Who “owns” the claim: Wrongful death claims belong to the surviving spouse, children, and parents — the statutory beneficiaries whose relationship to the decedent at death determines their standing. Survival actions belong to the decedent’s estate and are prosecuted by the estate’s personal representative.
Whose harm is compensated: Wrongful death compensates the living family members for their losses. The survival action compensates for the harm the decedent experienced — the pain, suffering, and other damages the decedent endured from the moment of injury until death.
Recoverable damages in survival actions: The estate may recover the decedent’s conscious pain and suffering, mental anguish, disfigurement, physical impairment, medical expenses, and lost earnings between the date of injury and the date of death. If the decedent survived for any period after the tortious conduct, even briefly, these damages may be substantial.
Exemplary (punitive) damages: Under Texas law, exemplary damages may be recoverable in a survival action where the defendant’s conduct involved gross negligence, malice, or fraud. See Tex. Civ. Prac. & Rem. Code § 41.003.

Why Both Claims Matter

Filing both a wrongful death claim and a survival action allows the family to seek the fullest measure of compensation available under Texas law. The wrongful death claim addresses the survivors’ forward-looking losses, while the survival action addresses the backward-looking harm the decedent personally endured. In cases where the decedent survived for hours, days, or longer after the injury, the survival action can represent a significant component of total recovery.

A skilled wrongful death attorney will evaluate both claims from the outset, ensuring that neither the beneficiaries’ nor the estate’s rights are overlooked.

Who Can File a Wrongful Death Claim in Texas?

Under Texas Civil Practice & Remedies Code Chapter 71, the following individuals have standing to bring a wrongful death action:

The surviving spouse of the deceased
The surviving children of the deceased (including adult children and adopted children)
The surviving parents of the deceased

These individuals may bring the claim individually or together. If none of the statutory beneficiaries files suit within three months of the death, the executor or administrator of the estate may do so on behalf of the beneficiaries, unless all beneficiaries have requested that no action be filed.

Common Causes of Wrongful Death Claims

Wrongful death claims arise from a wide range of circumstances. Common causes include:

Motor vehicle accidents — including truck accidents, drunk driving collisions, and pedestrian fatalities
Medical malpractice — surgical errors, misdiagnosis, medication errors, and hospital negligence
Workplace accidents — industrial incidents, construction site fatalities, and oil and gas industry accidents
Defective products — dangerous drugs, faulty medical devices, defective vehicles or equipment
Premises liability — unsafe property conditions, inadequate security, swimming pool drownings
Criminal acts — assault, homicide, or other intentional conduct (civil wrongful death claims are separate from any criminal prosecution)

Regardless of the specific cause, the central question in any wrongful death case is whether the defendant’s negligence, recklessness, or intentional misconduct caused or contributed to the death.

Who Can Be Held Liable in a Wrongful Death Case?

Depending on the circumstances, a competent wrongful death lawyer will evaluate all potentially liable parties, which may include:

Individual negligent actors (e.g., a negligent driver)
Employers (for employee negligence within the scope of employment)
Corporations and business entities
Product manufacturers, distributors, and retailers
Medical providers, hospitals, and healthcare facilities
Property owners and managers
Government entities (subject to sovereign immunity limitations)

In terms of maximizing recovery, the adage is true: the more, the merrier. In many cases, liability extends beyond the most obvious defendant(s), and a thorough legal investigation by a wrongful death lawyer early in the process can reveal additional responsible parties and insurance coverage.

Damages Available in Texas Wrongful Death Claims

Texas law allows surviving next of kin to recover both economic and non-economic damages they have suffered. Depending on the facts and applicable law, recoverable damages may include:

Loss of earning capacity — the income and financial support the deceased would have provided
Loss of companionship and society — the positive benefits of the relationship that have been lost
Loss of inheritance — the assets the deceased would have accumulated and left to beneficiaries
Mental anguish — the emotional pain and suffering of surviving family members
Loss of care, maintenance, support, services, and counsel
Funeral and burial expenses
Medical expenses — costs incurred between the injury and death

In addition, a separate survival action may be brought by the estate to recover damages the deceased would have been entitled to had they survived, including pain and suffering between the time of injury and death. Exemplary (punitive) damages may also be available in cases involving gross negligence or willful misconduct.

Statute of Limitations for Wrongful Death in Texas

The General Two-Year Deadline

Under Texas Civil Practice & Remedies Code § 16.003(b), a wrongful death claim generally must be filed within two years from the date of the decedent’s death. Failure to file within this period typically bars the claim entirely, regardless of its merits. The statute of limitations for a survival action likewise runs two years from the date of death.

The “Discovery” Rule

Texas courts recognize the “discovery rule” in limited circumstances. The discovery rule defers accrual of a cause of action until the plaintiff knew or, exercising reasonable diligence, should have discovered the nature of the injury. See Computer Assocs. Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453 (Tex. 1996); Wagner & Brown, Ltd. v. Horwood, 58 S.W.3d 732, 734-35 (Tex. 2001).

However, the Texas Supreme Court has applied the discovery rule narrowly. It applies only where (1) the nature of the injury is inherently undiscoverable, and (2) the injury itself is objectively verifiable. In most wrongful death cases, the death is an immediately known event, meaning the statute begins running at death regardless of whether the surviving family members have yet identified the responsible party or the precise mechanism of wrongful conduct.

That said, the discovery rule may apply in limited wrongful death contexts, such as:

Toxic exposure deaths — where the cause of death (e.g., occupational chemical exposure, pharmaceutical injury) was not and could not reasonably have been linked to a defendant’s conduct until after autopsy, medical investigation, or scientific developments
Medical malpractice deaths — where the negligent act causing death was concealed within medical records and not reasonably discoverable without expert review
Fraudulent concealment — where the defendant actively concealed the wrongful conduct, potentially estopping the defendant from asserting the limitations defense under Texas common law

The Practical Imperative

Because the discovery rule’s application in wrongful death cases is uncertain and fact-intensive, families should never rely on it to extend the deadline. It is critical to get a wrongful death attorney involved as soon as possible so that you can properly preserve evidence, identify all responsible parties, and protect your rights. Evidence degrades, witnesses become unavailable, and corporate defendants may destroy records as time passes. Don’t sit on your rights; get help from a Texas wrongful death firm like Bearstone Law, PLLC.

Strategic Representation for Texas Wrongful Death Claims

Wrongful death cases are among the most consequential matters in civil litigation. They require not only technical legal skill but also the sensitivity to work with grieving families during an extraordinarily difficult time. The stakes are high, the corporate defendants are well-funded and willing to fight. Indeed, the defense bar aggressively contests wrongful death claims in nearly every case.

Drawing on Biglaw-level litigation experience, the Firm approaches wrongful death matters with rigorous investigation, disciplined strategy, and trial readiness from day one. Read more on the Firm’s About page.

If your family has suffered the loss of a loved one due to the wrongful conduct of another, contact Bearstone Law, PLLC, today to evaluate your options and determine the most effective path forward to justice and resolution.

Texas Wrongful Death FAQ

Answers to common questions about Texas wrongful death claims — who can sue, what damages are recoverable, how the deadline works, and how survival actions fit in.

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What is a wrongful death claim under Texas law?

A wrongful death claim is a civil action brought by certain surviving family members when a death results from another party’s wrongful act, neglect, carelessness, unskillfulness, or default. There is no common-law wrongful death cause of action in Texas — the claim is purely statutory and is codified at Chapter 71 of the Texas Civil Practice & Remedies Code, commonly called the Texas Wrongful Death Act.
Sources: Tex. Civ. Prac. & Rem. Code § 71.002; Chapter 71 generally; Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 356 (Tex. 1990).
Who can file a wrongful death lawsuit in Texas?
The statute is exclusive: only the deceased’s surviving spouse, children, and parents have standing. They may sue individually, or one may sue for the benefit of all.
- Spouse includes both a ceremonial spouse and a common-law (informal) spouse, where the informal marriage is properly proved.
- Children include biological and legally adopted children (including adult children).
- Parents include biological and adoptive parents.
- Siblings, grandparents, grandchildren, fiancées, foster relations, and step-relations generally do not have standing absent legal adoption.
- If no eligible beneficiary files within three calendar months after the death, the executor or administrator of the estate must bring the action, unless all beneficiaries ask otherwise.
Sources: Tex. Civ. Prac. & Rem. Code § 71.004; Tex. Fam. Code § 2.401 (proof of informal marriage).
What is the difference between a wrongful death claim and a survival action?
They are distinct claims that are often filed together in the same lawsuit:
- Wrongful death claim (§§ 71.002–.011): belongs to the surviving spouse, children, and parents. Compensates their losses — lost financial support, companionship, mental anguish, etc.
- Survival action (§ 71.021): belongs to the decedent’s estate. Recovers damages the decedent could have pursued had they lived — most importantly, conscious pain and suffering between injury and death, pre-death medical bills, and funeral expenses.
Wrongful death proceeds go directly to the statutory beneficiaries and are not subject to the deceased’s debts (§ 71.011). Survival proceeds flow through the estate and are distributed by will or intestacy.
Sources: Tex. Civ. Prac. & Rem. Code § 71.021; § 71.011.
What kinds of incidents commonly give rise to wrongful death claims?
Examples include:
- Motor vehicle and commercial trucking collisions
- Medical malpractice (surgical errors, misdiagnosis, medication errors, hospital negligence)
- Workplace and industrial incidents, including construction and oilfield fatalities
- Defective products (pharmaceuticals, medical devices, vehicles, machinery)
- Premises liability (unsafe conditions, inadequate security, drowning)
- Intentional acts — civil wrongful death claims are independent of any criminal case
The central legal question is whether the defendant’s wrongful conduct caused or substantially contributed to the death.
Who can be held liable in a Texas wrongful death case?
Any person or entity whose wrongful conduct caused the injury and death can be liable, including:
- Individual tortfeasors (e.g., negligent drivers)
- Employers — for the negligence of employees within the course and scope of employment
- Corporations and other business entities
- Product manufacturers, distributors, and sellers
- Healthcare providers, hospitals, and medical facilities
- Property owners and managers
- Government entities (subject to sovereign and governmental immunity rules and notice requirements)
More than one defendant is often responsible, and thorough investigation tends to surface additional insurance coverage and stronger leverage.
Source: Tex. Civ. Prac. & Rem. Code § 71.002.
What is the deadline for filing a Texas wrongful death claim?

Generally, two years from the date of death. Missing the deadline typically bars the claim outright.

Limited exceptions can toll the period in specific circumstances — for example, the limitations clock for a minor beneficiary’s own claim does not run until the minor turns 18, and fraudulent concealment by a defendant can pause the period. The general “discovery rule” has been held not to apply to wrongful death and survival actions, and shorter deadlines and special notice requirements apply to claims against governmental entities and healthcare providers. Acting quickly preserves both rights and evidence.
Sources: Tex. Civ. Prac. & Rem. Code § 16.003(b); § 16.001 (tolling for minors and persons of unsound mind).
What damages can the family recover?
Depending on the facts and the beneficiary’s relationship to the deceased, recoverable wrongful death damages typically include:
- Loss of earning capacity and financial support the deceased would have provided
- Loss of companionship, society, and consortium
- Loss of inheritance — assets the deceased likely would have accumulated and left to beneficiaries
- Mental anguish
- Loss of care, maintenance, support, services, advice, and counsel
- Funeral and burial expenses
A companion survival action may recover the deceased’s pre-death pain and suffering, medical bills, and similar damages, which become part of the estate. Damages recovered in a wrongful death action are not subject to the decedent’s debts.
Sources: Tex. Civ. Prac. & Rem. Code § 71.010; § 71.011; § 71.021.
Are punitive (exemplary) damages available in a wrongful death case?

Yes, but only when the death was caused by a willful act or omission or gross negligence, proven by clear and convincing evidence, and by unanimous jury verdict.

There is also an important constitutional limit. Texas Constitution Article XVI, § 26 authorizes exemplary damages for a homicide only in favor of the deceased’s surviving spouse and the heirs of his or her body. Texas courts have read that to mean surviving parents cannot recover exemplary damages in a wrongful death action, even though they are statutory wrongful death beneficiaries entitled to actual damages. Punitive damages are also subject to statutory caps under Chapter 41.
Sources: Tex. Civ. Prac. & Rem. Code § 71.009; Tex. Const. art. XVI, § 26; Tex. Civ. Prac. & Rem. Code ch. 41; Travelers Indem. Co. of Ill. v. Fuller, 892 S.W.2d 848 (Tex. 1995).
How are wrongful death proceeds divided among beneficiaries?
Texas law directs the jury to apportion damages among the beneficiaries in shares proportionate to each beneficiary’s injury. § 71.010. Practically:
- Settlement — adult beneficiaries can typically negotiate the allocation among themselves.
- Trial — the jury allocates shares among beneficiaries based on the evidence.
- Minor beneficiaries — the court will usually appoint a guardian ad litem to protect the minor’s interests, and any settlement involving a minor requires court approval, often with funds placed into a structured trust or court-supervised account.
Wrongful death proceeds are not subject to the deceased’s debts — creditors of the decedent cannot reach them. § 71.011.
Sources: Tex. Civ. Prac. & Rem. Code § 71.010; § 71.011.
What should a family do in the days after a sudden death?
Personal needs come first. From a claim-preservation standpoint, a few practical steps help:
- Request copies of any police, EMS, OSHA, or incident reports as they become available.
- Preserve photos, video, voicemails, texts, emails, and witness names and contact information.
- Save physical evidence — vehicles, products, equipment, and clothing — and do not allow scenes or equipment to be repaired, altered, or destroyed.
- Avoid providing recorded statements or signing forms from insurance adjusters before speaking with counsel.
- Talk with a wrongful death attorney early — both to evaluate deadlines and to send preservation-of-evidence letters before records cycle out.
What if the death happened at work or involves workers’ compensation?
The analysis turns on the employer’s status and who caused the death:
- Subscribing employer — workers’ compensation death benefits may be available to qualifying family members, and tort recovery against the employer is generally barred except in cases of gross negligence (where exemplary damages may be sought by the surviving spouse and heirs of the body).
- Non-subscribing employer — surviving family may pursue a wrongful death claim directly against the employer, and key common-law defenses are unavailable to the employer.
- Third parties — even if workers’ comp applies, the family may have separate claims against non-employer defendants (other contractors, drivers, manufacturers, property owners), which can substantially expand recovery. Workers’ comp carrier subrogation rights need to be accounted for in any third-party settlement.
See Tex. Lab. Code ch. 408 (workers’ comp benefits, including death benefits); § 408.001(b) (exemplary damages exception for surviving spouse and heirs of the body in death cases involving gross negligence); § 406.033 (non-subscriber defenses barred).
Are there special rules for wrongful death medical malpractice cases?

Yes. Health care liability claims are governed by Chapter 74 of the Civil Practice & Remedies Code and carry their own procedural requirements (including pre-suit notice and expert reports) and damages caps. In addition to the general non-economic damages cap on health care liability claims, § 74.303 imposes a separate per-claimant cap on all damages — including exemplary damages — in wrongful death and survival actions against health care providers, originally set at $500,000 and indexed to the CPI from August 29, 1977. The cap does not apply to past or future expenses for necessary medical, hospital, or custodial care. These rules add layers of complexity that make early consultation with experienced counsel especially important.
Source: Tex. Civ. Prac. & Rem. Code § 74.303.
Do wrongful death cases always go to trial?

No. Many wrongful death cases resolve through settlement or mediation. But defendants in high-stakes cases are typically well-funded and aggressive, and the cases that resolve favorably tend to be the ones prepared from day one as if they will be tried. A credible trial posture — supported by thorough investigation, retained experts, and disciplined motion practice — is what drives meaningful settlement leverage.

Lost a loved one due to someone else’s wrongful conduct?

Bearstone Law, PLLC, represents Texas families in wrongful death and survival actions. If you would like to evaluate your options, we are available to talk.

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