After a death caused by someone else’s carelessness, Texas law can give a family two different claims. They are often brought together, and families often hear both names in the first conversation with a lawyer. This article explains the difference in plain words.
The wrongful death claim: the family’s own loss
A wrongful death claim is about what the death has taken from the family. Under the Texas Wrongful Death Act, it belongs to the surviving spouse, children and parents of the person who died, and it is brought for their benefit (Civil Practice and Remedies Code 71.004). Any one of them may bring it for all. If a jury finds damages are owed, it divides them among the spouse, children and parents in the shares it decides (71.010).
The survival claim: the claim of the person who died
A survival claim is the claim the person who died had for their own injury, before death. Texas law says that claim does not end at death: it passes to the heirs, legal representatives and estate (71.021). Because it passes to the heirs and the estate, relatives who are heirs may share in it even when they cannot bring a wrongful death claim.
If a question here is about your own family, you can talk it through with us. There is no cost and no pressure.
Side by side
| Wrongful death claim | Survival claim | |
|---|---|---|
| Who brings it | The spouse, children or parents, or one for all (71.004) | The heirs, legal representatives or estate (71.021) |
| Whose loss | The family members’ own losses from the death | The claim the person who died had for their own injury |
| How it is shared | Divided by the jury among spouse, children and parents (71.010) | Through the estate |
| Deadline | Generally two years from the date of death (16.003(b)) | Generally two years from the date of death (16.003(b)) |
Exemplary damages
Where the death was caused by a wilful act or omission or by gross negligence, the spouse, children and parents may seek exemplary damages (71.009). They need clear and convincing evidence and a unanimous jury (41.003) and are capped by statute (41.008).
If a question here is about your own family, you can talk it through with us. There is no cost and no pressure.
Why the difference matters
The difference decides who signs what, who is a party to the case, and how anything recovered is shared. It can also matter when the family is not all in agreement, or when there is no spouse, child or parent: then the estate’s survival claim may be the main claim. An estate may need an executor or administrator, and if no family member has filed the wrongful death suit within three calendar months, the executor or administrator must bring it unless all of them ask that it not be filed (71.004(c)).
The same facts decide both
Both claims depend on the same question: was the death caused by someone’s wrongful act, neglect or carelessness (71.002(b))? And both are subject to the Texas shared-fault rule: a recovery is possible only if the person who died was 50 percent or less responsible, and it is reduced by that share (33.001, 33.012).
If a question here is about your own family, you can talk it through with us. There is no cost and no pressure.
Talking with us
The consultation with our Dallas office is free and private. No Fees or Costs Unless We Win. The firm advances case costs, and your family owes no attorney’s fee and no case costs unless money is recovered. See also how a wrongful death lawsuit works in Texas and the Texas wrongful death statute of limitations.
When the family is not in agreement
Families grieve differently, and sometimes the spouse, children and parents do not agree about whether or how to bring a claim. Because any one of them may bring the wrongful death suit for the benefit of all (71.004(b)), and because the jury divides any damages among them (71.010), a family’s lawyer works to keep everyone informed. We explain each person’s place in the claim plainly and without taking sides inside the family.
If a question here is about your own family, you can talk it through with us. There is no cost and no pressure.
A note on the estate
A survival claim belongs to the heirs, legal representatives and estate. When there is a will, an executor may be named in it; when there is not, an administrator may be appointed. Either way, the estate’s representative often joins the family’s suit so that both claims are heard together.
A short example in words
Suppose a driver’s carelessness causes a crash, the person hurt is taken to a Dallas hospital and dies a week later. The spouse, children and parents may have a wrongful death claim for their own losses from the death. The estate may also have a survival claim for what the person suffered in the week before death. Both claims depend on the same facts, and both generally must be filed within two years of the date of death.
Responsible attorney for this page: Michael Uvalle, LAWBOSS – Harris, Nelsen & Uvalle, PLLC, primary practice location Dallas, Texas. This page is general information, not legal advice.
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