When someone dies because of another person’s carelessness (wrongful death case), Texas law gives the family two separate legal claims, and most families do not know that either one exists until months have passed.
It usually happens like this. A family loses someone in a car wreck, a fall, or a nursing home. They do what families do: they plan the funeral, they gather the paperwork, and they call a lawyer to help with the estate. Somewhere in that process, someone mentions the wreck, almost in passing. By then the car has been sold for scrap, the store’s security video has been recorded over, and a good part of the two-year filing window is gone.
This article explains how a death becomes a legal claim in Texas, who is allowed to bring it, what it pays for, how it fits together with the estate, and what a family should do in the first few weeks to protect it. It is general information, not legal advice about your situation. The rules below are Texas rules; other states differ.
One death, two claims
Until the 1800s, the law said that a death could not be sued over at all. If a railroad killed a man, his widow had no claim, because the person who was wronged was dead. Texas, like every other state, has since reversed that rule by statute, and it did so by creating two different claims.
The wrongful death claim belongs to the family. It compensates the surviving spouse, children, and parents for what they lost when their family member died: the support, the companionship, the guidance, and the grief. It is found in Chapter 71 of the Texas Civil Practice and Remedies Code.
The survival claim belongs to the person who died, which in practice means it belongs to their estate. It is the lawsuit the deceased person could have brought if they had lived: their own pain, their medical bills, their funeral. The law says that claim “survives” the death instead of dying with the person, which is where the name comes from.
Most of the practical problems in a death case come from the fact that these are two different claims, owned by two different sets of people, that follow two different paths to the money.
Who can bring a wrongful death claim in Texas
The Texas Wrongful Death Act allows exactly three groups of people to recover: the surviving spouse, the children, and the parents of the person who died. That is the entire list.
Some details that surprise families:
- Adult children count, and so do the parents of an adult who died.
- A common-law spouse counts, but the marriage has to be proven.
- A child born outside of marriage counts if paternity can be proven.
- A parent who was estranged, or who left decades ago, is still a parent under the statute. The jury decides what that parent actually lost, which may be little.
- An unborn child is treated as a child.
Who does not have a wrongful death claim: brothers and sisters, grandparents and grandchildren, nieces and nephews, stepchildren who were never adopted, fiancés, and partners who were never married. It does not matter how close they were. A sibling who lived with and cared for the deceased for twenty years has no wrongful death claim; a father who walked out when the child was four does.
The will does not change any of this. A person cannot add a wrongful death beneficiary in their will or take one away. The Legislature wrote the list, and it is the same for everyone.
Any one of the beneficiaries can file the claim, and when one does, it is filed for the benefit of all of them. If no one in the family has filed within three months of the death, the executor or administrator of the estate is directed by statute to file it unless all the beneficiaries ask that it not be filed.
What each claim pays for
The two claims compensate different losses, and the difference decides where most of the money in a case is.
Wrongful death damages are measured family member by family member. Each spouse, child, or parent has their own claim for:
- Financial support the deceased person would have provided: income, care, services, advice, and contributions of value.
- Loss of companionship and society: the love, comfort, and company the family member would have had.
- Mental anguish: the emotional pain of the loss itself.
- Loss of inheritance: what the person would likely have saved and left to that family member if they had lived a normal life span.
- Punitive damages when the death was caused by gross negligence or an intentional act, though under the Texas Constitution these go only to the surviving spouse and children, not to parents.
Survival damages are what the deceased person suffered between the injury and the death:
- Conscious pain and mental anguish. The word conscious matters. A person who died instantly, or who never woke up, has no pain-and-suffering claim. A person who knew they were dying does, even if the interval was short.
- Medical expenses for the final injury.
- Funeral and burial expenses.
- Lost earnings between the injury and the death, if any.
In an instant-death case, nearly all the value is in the wrongful death claim, because the survival claim is little more than the funeral bill. In a case where the person lingered in intensive care for weeks, the survival claim can carry a six-figure hospital bill and substantial pain-and-suffering damages, and the balance shifts.
Why the difference matters: the money takes two different roads
The easiest way to understand it is to think about life insurance. When a life insurance policy names a beneficiary, the money goes straight to that person. It does not pass through the estate, it is not controlled by the will, and the deceased person’s creditors cannot take it.
The wrongful death claim works the same way. The Legislature wrote the beneficiary designation, and the deceased person could not change it. The money goes directly to the spouse, children, and parents. It is not listed on the estate inventory, the executor has no control over it, and by statute it is not subject to the debts of the person who died.
The survival claim is the opposite on every point. It is an asset of the estate, like a bank account. It passes under the will, or by the intestacy laws if there is no will. It goes on the inventory. The deceased person’s creditors can reach it. And the medical bills from the final injury, along with whoever paid them (Medicare, Medicaid, a health plan, or a hospital with a lien), are paid out of this claim, not the wrongful death claim.
That last point is why the division of a settlement between the two claims is negotiated so carefully. In a case where the death was instant and the estate has no debts, it is common and proper for nearly all of the settlement to be allocated to the wrongful death claim, with little or nothing going to the estate. But the allocation has to match the facts. A family that lets a loved one suffer for weeks in a hospital and then allocates one dollar to the survival claim to avoid a $400,000 hospital lien is inviting a fight it will lose.
Three examples
The piano. A piano falls from a third-floor window and kills a forty-five-year-old father of two on the sidewalk. He never knew what hit him. His survival claim is worth very little: no conscious pain, no medical bills, only the funeral. His wife’s and children’s wrongful death claims are the entire case: twenty years of lost support, lost companionship, and their grief. Now change one fact. He survives, conscious and in pain, for six days in intensive care. The survival claim now carries real damages and a large hospital bill, the estate has become a real party with real creditors, and the division between the two claims matters.
Uncle Joe. Uncle Joe was eighty-six and retired. He had no surviving spouse, no children, and his parents were long gone. He was survived by twenty-three nieces and nephews, several of whom were as close to him as children. He died because of someone else’s negligence, and fault was not seriously disputed. Under Texas law, that family had no wrongful death claim at all, because none of them was a spouse, child, or parent. The only claim was the survival claim, owned by his estate, and it was worth what could be proven about his conscious suffering before he died, plus his medical and funeral bills. At eighty-six there were no lost earnings. The case lived or died on emergency room records, nursing notes, and witnesses who could say whether he was awake and in pain.
The release that missed a claim. An insurance company settled a death case with the widow and children. Each of them signed a release of their own wrongful death claim. Nobody signed anything on behalf of the estate, because no estate had been opened. Later, an administrator was appointed. The estate still owned a survival claim that had never been released, and the insurance company found itself sued a second time over the same death. The lesson cuts both ways. Insurers now insist that someone with legal authority over the estate sign the release. And a family that signs the wrong papers, or signs them in the wrong capacity, may give away a claim that no one ever valued.
Do you have to open an estate?
Often, no. Many death cases in Texas are settled without a probate court ever being involved. When the death was instant or nearly so, the estate has no debts, and the family members agree, the heirs themselves can hold the survival claim. The settlement papers recite that no estate administration is pending and none is needed, every heir signs, and little or nothing is allocated to the estate, so there is nothing to administer.
But there are situations where an estate will be required, and it is better to know that early:
- The insurance company insists. For larger settlements, many carriers will not pay without a court-appointed executor or administrator, or a court order declaring who the heirs are.
- The heirs are unknown, disputed, or not cooperating. Uncle Joe’s twenty-three nieces and nephews are a good example.
- The estate has debts. If creditors are unpaid, the family cannot honestly say no administration is needed.
- A minor is involved. A child’s share of any settlement requires court approval no matter how agreeable everyone is, and the money has to be placed somewhere protected: the court registry, a trust, or a structured settlement that pays out over time.
- The person who died had a will that leaves things to someone who is not a spouse, child, or parent. Then the survival money and the wrongful death money go to different people, and someone with authority has to sort it out.
A point worth knowing: some common probate shortcuts, such as probating a will as a “muniment of title” or using a small estate affidavit, do not create an executor or administrator. They work well for a simple estate, but they leave no one with authority to settle or release an injury claim. If a claim exists, that choice should be made with the claim in mind.
There is also a rule about fees. When an executor or administrator hires a lawyer on a contingent fee for an estate’s claim, Texas law allows a fee of up to one-third without court approval. Anything above that requires approval from the probate court before the work begins, even for an independent executor. A good lawyer will raise this at the start, when it is a short application, rather than at settlement.
When the person who caused the harm has died
Sometimes it is the at-fault driver who died, in the same wreck or afterward. The injured person’s claim does not go away. Texas law allows a claim to be brought against the deceased person’s estate, and any judgment is paid in the ordinary course of administering the estate.
Two things families should understand about this:
“The Estate of John Smith” cannot be sued by that name. An estate is not a legal entity. The suit has to be brought against the executor or administrator in that capacity. If the at-fault person’s family has not opened an estate, and they often have no reason to, the injured person can ask the probate court to appoint an administrator so that there is someone to sue. The law treats a person with a claim against the estate as an interested person with the right to do that.
The real target is almost always the insurance policy. In nearly every one of these cases, the claim is paid by the deceased driver’s auto or homeowner’s liability policy, not by the family’s inheritance. The insurance company hires the defense lawyer, controls the defense, and pays the settlement or judgment up to the policy limits. The usual resolution is an agreement under which the injured person looks only to the policy and the estate’s own assets are never at risk.
If you are on the other side of this, handling the estate of someone who may have caused a wreck, notify every liability carrier in writing immediately, let the carrier defend the claim, and do not distribute the estate’s assets while a known injury claim is unresolved.
How to tell whether there is a claim
A negligence claim needs four things: someone owed a duty of care, they breached it, the breach caused the injury, and there were damages. Texas also applies a rule called proportionate responsibility: the injured person’s recovery is reduced by their own share of the fault, and if they were more than 50 percent at fault, they recover nothing.
The practical question is usually different: is there a defendant who can pay? The minimum auto liability policy in Texas is $30,000 per person. A clear-liability death case against an individual driver with a minimum policy is, most of the time, a $30,000 case. That is why so much of the work in these cases is finding a second defendant or a second policy. Some places to look:
Car and truck crashes. If the other driver was working at the time, there is an employer, and an employer means a commercial policy and a company that can be held responsible. Do not overlook the deceased person’s own auto policy. Uninsured and underinsured motorist coverage and personal injury protection are paid by your own insurer and are often the largest coverage available. The police crash report (the Texas CR-3) lists every vehicle’s insurance, any employer, contributing factors, and witnesses, and a lawyer can pull it in minutes.
Vehicle defects. A single-car crash, or one that was partly the deceased person’s own fault, can still be a case against the manufacturer if a defect made the injuries worse: a seat belt that unlatched, airbags that did not deploy, a roof that crushed in a rollover, a seatback that collapsed onto a child, a tire whose tread separated. Fault for the crash and fault for the death are different questions. These cases depend entirely on the vehicle, which is addressed below.
Falls. Many elderly people die after a fall, and families almost never think of it as anyone’s fault. Often it is. A wet floor in a grocery store, a curled mat at a pharmacy, a missing handrail at an apartment complex, a wheel stop in a parking lot, a dim stairwell at a church: a property owner has to use reasonable care to protect the people it expects on the property, and a business that serves eighty-year-olds has to make the place safe for eighty-year-olds. Falls are deadly at that age, which makes them serious cases, not worthless ones. A hip fracture followed weeks later by pneumonia and death can be a wrongful death case if the medicine connects the two.
Deaths at work. If the employer carries workers’ compensation, the family’s remedy against the employer is generally limited to comp benefits, though a surviving spouse and children can still recover punitive damages if the employer’s gross negligence caused the death. If the employer does not carry workers’ compensation, it can be sued for ordinary negligence and has lost most of its defenses. Either way, other companies on the job site, equipment manufacturers, and third-party drivers can be sued.
Drunk drivers. A bar, restaurant, or store that serves alcohol to someone who is obviously intoxicated can be liable for the harm that person causes. These cases are won with receipts, credit card records, and video, all of which disappear quickly.
Nursing homes. Honesty is in order here. Injuries and deaths in nursing homes (falls, bedsores, dehydration, medication errors, residents who wander off) are treated under Texas law as medical malpractice claims. That brings a $250,000 cap on non-economic damages per facility, a requirement to file an expert report within 120 days of the facility’s answer, a two-year deadline that runs from the date of the care rather than the date of death, and usually an arbitration clause buried in the admission paperwork. An elderly resident has no lost wages, and Medicare has usually paid the medical bills. Many of these cases are not economically viable for a general personal injury firm. We take the strong ones. For the rest, there are firms that handle nursing home cases in volume, and we can help a family get to one.
Why time matters more than the deadline
Texas gives a family two years from the date of death to file a wrongful death claim, and generally two years from the injury to file the survival claim, with the clock paused for up to a year after a death while an estate is set up. Those deadlines are real, and there is no extension for not knowing the law. But they are not the main problem.
The main problem is that the evidence is gone long before the deadline arrives:
- Days to weeks: store and apartment surveillance video is recorded over. Most systems keep thirty days or less.
- Weeks: the insurance company declares the car a total loss, takes the title, and sends it to a salvage auction. Once it is crushed or resold, a defect case is usually over.
- Weeks to months: the scene is repaired, a truck’s electronic data is overwritten as it goes back into service, and witnesses move.
Some deadlines are much shorter than two years. A claim against a city, county, or other government body requires written notice within six months, and some city charters require it in as little as thirty days. A claim involving a nursing home or hospital runs from the date of the care, not the date of death, and needs a pre-suit notice letter before it can be filed at all.
The pattern we see is a family calling fourteen months after a death, because the wreck came up while they were working on the estate paperwork. A case that comes in at week two and a case that comes in at month fourteen are not the same case.
What a family should do in the first two weeks
- Do not release the vehicle or sign over the title. If a car or truck was involved, tell the insurance adjuster, in writing, that the vehicle is to be preserved. If necessary, buy it back from salvage. The tires, the child seat, and the vehicle’s event data recorder go with it.
- Ask for an autopsy before cremation if there is any chance someone else’s conduct caused the death. Cause of death, the mechanism of injury, and evidence of how long the person survived and whether they were conscious are established there. Once the body is gone, so is most of that proof.
- Write down where it happened and what was there. If it was a fall, where exactly, what did they trip on or slip in, who saw it, and was there a camera? The emergency room record often has the answer in the person’s own words.
- Do not give a recorded statement or sign anything for an insurance company, including the other driver’s insurer, including your own. A release signed by the wrong person, or in the wrong capacity, is the problem described above.
- Gather the paperwork you already have. The crash report, the death certificate (the “manner of death” line matters: “accident” or “pending” is a reason to ask questions), the deceased person’s own auto and health insurance cards, and any admission papers from a facility, including who signed them.
- Find out whether the person who died was already in a claim. Someone hurt in a wreck in March who dies of something unrelated in November still has a claim. It belongs to the estate, and it is the one families miss most often.
- Call a lawyer before the estate paperwork is finished, not after. The way the estate is opened, and who is appointed, should be decided with the injury claim in mind.
How we work with your probate lawyer
If you already have a lawyer handling the estate, keep them. The estate administration, the determination of who the heirs are, court approval of any settlement involving a minor, and the handling of creditors and liens are probate work, and the lawyer who already knows your family is the right one to do it. We handle the injury claim and work alongside them. When a claim is referred to us by another lawyer, Texas rules require that the referring lawyer stay responsible for the case and that you consent in writing to the arrangement, and the fee division comes out of our fee, not out of your recovery.
When a case does settle, think about how the money is received before it arrives. Payments on account of a physical injury or death are generally free of income tax, and that includes payments made over time through a structured settlement. A guaranteed monthly check protects a surviving spouse who has never managed money, a young adult child, or a beneficiary who receives government benefits and would lose them with a lump sum. Those decisions have to be made before the settlement is signed, not after.
A five-minute conversation costs nothing, and we would rather look at ten situations that turn out not to be cases than miss the one that was. If someone in your family has died, or been seriously hurt, and anyone else’s conduct played a part, call us before the estate is settled.
About the Kuzmich Law Firm, P.C.
The Kuzmich Law Firm, P.C. is a state-wide personal injury practice proudly based in Flower Mound, Texas, a thriving community in the Dallas/Fort Worth area of North Texas. For over 30 years, the firm has represented injured Texans in state and federal courts across the entire State of Texas, building a reputation for skill, integrity, and results. At Kuzmich Law Firm, P.C., our dedicated team not only guides you through the legal process but also ensures that every aspect of your case is meticulously addressed, from gathering evidence to negotiating settlements. By handling the legal load, we enable you to focus on healing and recovery.
Call us at 972.434.1555 and talk to a lawyer today for FREE.