Texas law creates two separate claims after a death, brought by two different sets of people, for two different kinds of loss. Understanding which is which is the first thing a family needs.
A wrongful death case in Texas is not one claim. It is two, and they are governed by different sections of the Civil Practice and Remedies Code.
The wrongful death claim under Chapter 71, Subchapter A compensates certain surviving family members for their own losses. The survival claim under § 71.021 belongs to the decedent’s estate and compensates for what the decedent suffered before dying. They are proved separately, valued separately, and distributed differently. In most cases both are filed together.
We handle these cases with the understanding that the family is dealing with something the legal system is poorly equipped to address. If someone in your family was killed by another party’s negligence, call (210) 832-9090 whenever you are ready. There is no charge for the conversation, and no fee unless we recover.
Tex. Civ. Prac. & Rem. Code § 71.004(a) is exclusive and it is narrow. A wrongful death action is “for the exclusive benefit of the surviving spouse, children, and parents of the deceased.”
That list is the entire list. Siblings cannot bring a wrongful death claim in Texas. Neither can grandparents, nor stepparents who never adopted, nor an unmarried partner regardless of how long the relationship lasted. Adopted children count as children, and adoptive parents count as parents.
Two wrinkles come up constantly. First, an informal (common-law) marriage under Tex. Fam. Code § 2.401 can establish a surviving spouse, and whether one existed is frequently contested. Second, under § 71.004(b), any one of the eligible individuals may bring the action for the benefit of all — the family does not need to agree on a single plaintiff, and one person filing does not shut the others out.
Then there is the timing rule people miss. Under § 71.004(c), if none of the eligible family members has begun the action within three calendar months after the death, the executor or administrator of the estate shall bring and prosecute it, unless all of the eligible individuals request otherwise. That three-month mark is not a deadline that ends the claim, but it does shift the obligation, and it is worth knowing before it passes.
Under § 71.021, a personal injury cause of action “does not abate because of the death of the injured person” and instead “survives to and in favor of the heirs, legal representatives, and estate.” The suit may be brought and prosecuted as if the liable person were alive.
The survival claim compensates for what the decedent experienced: conscious physical pain and mental anguish before death, medical expenses incurred, funeral and burial expenses, and lost earnings between the injury and the death. Where death was instantaneous, the conscious pain component may be small or absent; where a person survived hours or days, it can be substantial.
Because the survival recovery belongs to the estate, it is distributed under the will or by intestacy — which means it can reach people who have no wrongful death claim at all, including siblings. A family told that a brother or sister “cannot recover” has sometimes been told only half the story.
The controlling framework comes from Moore v. Lillebo, 722 S.W.2d 683 (Tex. 1986), which identified four separate elements of recovery for a statutory beneficiary. The Court was explicit that they are distinct and must not overlap, and each is submitted for past and future separately.
Pecuniary loss — the care, maintenance, support, services, advice, counsel, and reasonable contributions of pecuniary value the beneficiary would have received. Note that this includes far more than a paycheck.
Loss of inheritance — the present value of what the decedent would, in reasonable probability, have added to the estate and left to the beneficiary but for the death.
Mental anguish — the emotional pain, torment and suffering the beneficiary would in reasonable probability experience from the death. Moore’s key holding is that in a wrongful death action it is no longer necessary to prove that mental anguish was physically manifested.
Loss of society and companionship — the positive benefits flowing from the love, comfort, companionship and society the beneficiary would have experienced had the decedent lived.
Texas does not cap compensatory damages in an ordinary wrongful death case. The well-known caps on non-economic damages apply to health care liability claims under Chapter 74, which is a different kind of case with different rules.
Exemplary damages require proof by clear and convincing evidence of fraud, malice, or gross negligence, and they are subject to the statutory cap in Chapter 41 of the Civil Practice and Remedies Code. They are not available in every case and should not be assumed.
Where the death happened at work, there is a specific and important exception. If the employer carried workers’ compensation, § 408.001(a) of the Labor Code normally makes comp the exclusive remedy against that employer. But § 408.001(b) preserves the recovery of exemplary damages by the surviving spouse or heirs of the body of an employee whose death was caused by the employer’s intentional act or gross negligence.
The limits are worth stating plainly: this exception exists only in death cases, only for the spouse and heirs of the body, and it yields only exemplary damages — not compensatory ones. It is nonetheless the reason a workplace death is worth investigating even where a comp claim has already been accepted.
Where the employer did not carry workers’ compensation, the analysis is entirely different and generally far more favorable. See our non-subscriber page.
Vehicles, equipment, video, electronic data and records — before repair, release or routine deletion. This is the work that cannot be redone later.
Identify the statutory beneficiaries, address the § 71.004(c) three-month rule, and open an estate where a survival claim requires a representative.
Independent investigation and reconstruction, regulatory and inspection records, and — in a trucking case — a plan built around Chapter 72 bifurcation from the outset.
Economic analysis of support and lost inheritance, and careful, dignified development of the mental anguish and companionship elements Moore v. Lillebo requires be submitted separately.
Two years, and the accrual date is different from an ordinary injury case. Under Tex. Civ. Prac. & Rem. Code § 16.003(b), the cause of action accrues on the death of the injured person — not on the date of the injury. If someone was hurt in March and died in September, the clock runs from September. Claims against a governmental entity require formal notice far sooner, sometimes within 45 to 90 days under a local charter, and missing that notice can end the claim regardless of the two-year statute.
Because Texas limits the wrongful death claim itself to the surviving spouse, children and parents under § 71.004(a) — siblings are not on that list. But that is only one of the two claims. The survival claim under § 71.021 belongs to the estate and is distributed under the will or by intestacy, which can include siblings. Whether you have a recovery depends on the estate, not on the wrongful death statute.
No. Under § 71.004(b), any one of the eligible individuals may bring the action for the benefit of all. Families often proceed with one filing. Where beneficiaries have genuinely conflicting interests — a contested common-law marriage, a disputed paternity, an estranged parent — separate counsel may become necessary, and we will tell you plainly if we think you are in that situation.
Not on compensatory damages in an ordinary case. The non-economic damage caps people have heard about apply to health care liability claims under Chapter 74, which is a different statute. Exemplary damages are a separate matter — they require clear and convincing evidence of fraud, malice or gross negligence and are subject to the cap in Chapter 41.
There is no charge for the conversation and no obligation. If you would rather someone else in the family call first, that is fine too.