Houston Wrongful Death Lawyer

What is Wrongful Death in Texas?

Every state defines wrongful death in its own way, although most definitions are similar. In Texas, Civil Practice and Remedies Code Title 4, Section 71 defines “wrongful death.” According to the statute, one may have grounds for an action for actual damages from an injury that results in an individual’s death if liability exists under the stipulations of the subsections. In general, if someone caused the injury that led to death by a wrongful act, neglect, carelessness, unskillfulness, or default, family members have the right to file a wrongful death claim.

Texas state law deals a lot with industrial and transportation industry deaths, but the main subsection you likely need to know as a family member is the first subsection of the law: a plaintiff can file a wrongful death action if someone else’s negligence or wrongful act caused or contributed to the death. It is possible to file a wrongful death claim for an unborn child at all stages of gestation in Texas, from fertilization to birth.

What Damages Are Available to Plaintiffs in Texas Wrongful Death Claims?

Should a plaintiff have a successful wrongful death claim, the “damages,” or compensation awards, available differ from damages in a typical personal injury claim. According to the law, the family will not have to use damage awards to cover the decedent’s remaining debts. The following damages may be available in a wrongful death lawsuit in Texas:

  • Loss of earning capacity. Loss of the loved one’s capacity to earn an income and provide for the family because of the untimely death.
  • Loss of household services. The lost value of services the loved one performed around the house, such as childcare, laundry, bill paying, and chores.
  • Loss of companionship. The value of the non-economic losses the family member(s) will suffer in the decedent’s absence, such as lost guidance, advice, parental support, company, and consortium.
  • Mental anguish. The family’s mental, emotional, and psychological harm because of the unexpected (and often traumatic) wrongful death of a loved one.
  • Loss of inheritance. Loss of the inheritance the decedent likely could have left behind in his/her lifetime were it not for the fatal injury.

If someone else caused the death by a “willful act, omission, or gross negligence,” the plaintiff may also be eligible for exemplary damages in addition to actual damages. This includes a punitive damage award to punish the defendant for his or her actions. The state of Texas currently places a cap only on punitive damages. The cap is either $200,000 or twice the economic damages plus the amount of non-economic damages (whichever is greater), up to $750,000. The surviving individuals entitled to recover damages must divide the damage award in shares as the jury decides in its verdict.

Who Can File a Wrongful Death Claim?

Filing a civil claim for the wrongful death of a loved one is a special privilege the law only gives to certain parties. Section 71.004 of the law states that bringing a wrongful death action is the “exclusive benefit of the surviving spouse, children, and parents” of the decedent. A decedent’s siblings cannot file a wrongful death claim in Texas. The following is a breakdown of types of wrongful death claims one might file:

  • Loss of a child. The unexpected death of a child – whether minor or adult – may give one or both parents the right to file a wrongful death claim. An adoptive parent can file for an adopted child as long as the adoption was full and legal.
  • Loss of a spouse. Surviving spouses have the right to bring claims regarding their recently deceased husbands or wives in Texas. Surviving spouses may be eligible for specific damages relating to the loss of spousal love and support.
  • Loss of a parent. Adult children can file a wrongful death claim on their own, or else a surviving spouse can file on behalf of minor children. An adoptive child has the right to file for a parent as long as the adoption was full and legal. However, an adopted child cannot file for the death of a biological parent.

All of these parties may bring the action together, or one may bring the action on behalf of all. If, after three months, none of these parties files a claim, the decedent’s administrator or executor has the right to file the claim, unless surviving family members request he/she not do so. The decedent’s will might name this person, or else the courts can assign the position to someone within or outside of the family during probate.

What Is a Survivorship Claim?

A survivorship claim is not the same as a wrongful death claim. Under Texas law, the estate of the deceased person can bring a survivorship claim on behalf of the estate. A survivorship claim aims to recover compensation for the cost of the decedent’s (not the family’s) personal and financial losses relating to final injuries and death. A successful survivorship claim could result in payment to the estate for the decedent’s medical costs leading up to death, pain and suffering, and funeral/burial expenses. Our lawyers can help explain the differences between the two types of claims in more detail during a free consultation.

Similarities Between Wrongful Death and Survival Claims

The similarities between these cases begins with why they’re filed: a person’s death. Other similarities include the parties that are allowed to sue and those who may be sued. Many of these areas will vary, as state laws govern wrongful death and survival actions. Anyone entertaining the idea of filing either claim should consult an expert on the laws in his or her state before pursuing any legal action.

The parties that can file wrongful death lawsuits or survival actions in Texas are:

  • The deceased’s spouse
  • Children of the deceased (this includes adult and legally adopted children)
  • Parents of the deceased, including adoptive parents

In some states, siblings can also file these claims, but this isn’t allowed in Texas. If no one in the family files a claim, another personal representative of the deceased or his or her executor may file. However, a surviving family member has the right to ask this party not to pursue a claim.

The party being sued in a case of wrongful death or survival action varies widely as well. This could be anyone who might have been responsible for the loss the person bringing the action suffered.

Differences Between Wrongful Death and Survival Claims

The true difference between wrongful death lawsuits and survival actions is in the way that damages are compensated. What damages are considered and who receives them differs between these two types of cases. Damages assessed in a wrongful death case are those the decedent’s survivors suffer. These include:

  • Lost earnings
  • Lost support
  • Anguish and suffering
  • Lost love
  • Lost inheritance

However, survival claims consider the damages that the decedent would have received had he or she survived. These include lost wages during recovery, medical bills, and the suffering an injury inflicted.

When a wrongful death case is won, the compensation is given directly to the surviving family. Exactly how the compensation is distributed among the family varies in different states. In Texas, the court will decide on proportions of compensation based on each individual’s damages. The compensation won in a survival action doesn’t go directly to the family; it goes to the decedent’s estate. Then, the decedent’s will or state laws determines what happens to the money. This is usually the process in wrongful death cases.

The statute of limitations for these cases also differs. In Texas, parties have up to two years after a death to file a case for wrongful death. A survival claim’s statute of limitations is based on the personal injury case that the decedent could have filed if he or she had survived.

What Are the Statutes of Limitations in Texas for Wrongful Death Claims?

The laws that govern the specifics of wrongful death lawsuits vary from state to state, which includes those affecting the statutes of limitations. If you’re facing a wrongful death claim in Texas, you need to know your options and who can help.

The General Statute of Limitations for Wrongful Death Filing

In Texas, a party usually has two years following the date of a death to begin a wrongful death lawsuit. Any action past two years is impossible, with a few specific exceptions. This two-year time limit is shared with personal injury cases, as are many of the exceptions to the statute.

Exceptions From the General Statutes

Exceptions from the two-year limitation for filing a wrongful death lawsuit are specifically defined in Texas’ civil practice and remedies codes (CPRC). These include:

  • CPRC 16.001(a)(1). This exception applies to minors and states that the time that the minor is underage isn’t counted in the time toward the statute of limitations. This effectively means that a minor can reach the age of 18, and then he or she will have the normal two-year period to file a wrongful death claim.
  • CPRC 16.0031. This exception applies to deaths in cases of exposure to silica and asbestos. The two-year period for deaths in these cases begins with the earlier of two occurrences: the person’s death or the claimant filing against the defendant according to sections 90.003 or 90.004 (which deal with reports of injury or death related to asbestos or silica).
  • CPRC 16.008. This exception is for cases filed against architects, engineers, interior designers, and landscape architects. It states that a case can be filed up to 10 years from the point of completion of the work or use of equipment installed.
  • CPRC 16.009 is similar to 16.008, except it applies to cases filed against people furnishing construction or repair of improvements to real property.
  • CPRC 16.0012. This exception applies to cases of wrongful death due to a defective product and grants a 15-year period in which a product liability action can be filed. This code has a few of its own exceptions, which a legal professional will consider on a case by case basis.
  • CPRC 16.004. This exception delineates a four-year statute of limitations for filing a case of wrongful death if the death was the result of:
    • Specific performance of a contract for the conveyance of real property
    • Penalty or damages on the penal clause of a bond to convey real property
    • Debt
    • Fraud
    • Breach of fiduciary duty
  • CPRC 16.0045. This code allows for wrongful death claims to be filed up to 15 years after the date of death if the death was caused by certain offenses.

Texas Business and Commerce Code also affects the statute of limitations in wrongful death cases. Tex. Bus. & Com. Code § 2.725 affects cases of wrongful death from a defective product and essentially extends the two-year limitation period for filing to four years after the product was sold to the deceased.

Proving Negligence in a Wrongful Death Claim

Like most civil claims, the success of a wrongful death lawsuit typically hinges on the plaintiff’s ability to prove the defendant’s negligence. Unless the claim involves strict liability rules (i.e., a product liability claim, some dog bite claims, or a workers’ compensation lawsuit), it is the plaintiff’s burden to convince the judge or jury the defendant is liable for damages. A plaintiff will need the following three elements to prove negligence:

  1. The defendant owed the decedent a duty of care. A “duty of care” can mean many different things depending on the relationship between the plaintiff and defendant at the time of death. For example, it could describe an employer’s duties to employees, a doctor’s duties to patients, or a driver’s duties to others on the roadway.
  2. The defendant breached his/her duties. Any failure to adhere to the accepted standards of an industry or circumstance could qualify as a breach of duty. Again, not all wrongful death claims will come with the burden to prove negligence.
  3. The defendant’s actions were the proximate cause of death. The plaintiff needs evidence connecting the defendant’s breach of duty of care with the injuries that ultimately led to the decedent’s death. The defendant must be at least partially at fault for causing the fatal injuries.

The fourth element of proving damages (found in most personal injury claims) is unnecessary in wrongful death claims, because the death is a compensable damage in and of itself. The plaintiff will have to show proof of other damages, however, if he/she wishes to recover for them. One of our attorneys can assist your family with proving wrongful death and related damages in Texas.

How Can a Houston Wrongful Death Attorney Help?

Hiring an attorney can immediately put your mind at ease during this difficult time for you and your family. Instead of dealing with complex legal matters, documentation, burdens of proof, and rules for filing a claim, you can focus on grieving and healing with your family members. Your lawyer will take care of every aspect of your claim on your behalf. This can include important tasks such as:

  • Contacting insurance companies and financial institutions. Phone calls from insurers and bill collectors might overwhelm you after an unexpected death. Let an attorney take over communications for you, handling bills you owe hospitals and funeral homes and negotiating fairer settlements with insurance companies. You can enjoy as much peace of mind as possible while a lawyer deals with the red tape.
  • Overseeing the investigation. A lot of mystery may still surround the untimely death of your loved one. A thorough investigation from a team you can trust – hired through your lawyer – can help you get to the bottom of who or what caused the fatal injury. An investigation may uncover the liability of a product manufacturer, property owner, employer, doctor, criminal, or other party.
  • Walking you through the legal process. Texas statutes keep tight control over when, how, who, and why one may file a wrongful death claim. A single misstep could lead to the courts refusing to hear your case. It’s extremely important to hire a lawyer to walk you through the web of laws and rules surrounding your case. A lawyer will make sure you file your claim on time, correctly, and with the right courts the very first time.

Do not try to negotiate your loved one’s wrongful death lawsuit on your own. The lawyers at Brian White & Associates are especially qualified to handle these types of claims in Texas, with decades of experience and a passion for bringing wrongful parties to justice. We genuinely care about you and your family during this tough time. Let us escalate your claim to the next level, fight for fair compensation, and help your family heal after the tragic loss of a loved one’s life.

Houston Wrongful Death Statistics

Preventable and unintentional deaths occur more often than you might realize in Houston and throughout the state of Texas. Fatal car accidents, workplace incidents, and acts of violence are all prevalent in Harris County. Reviewing some of the most recent statistics on wrongful death in the area can help you realize you’re not alone. Others have had similar experiences and many have achieved outstanding claim results with help from attorneys.

According to the Houston-Galveston Area Council’s 2016 Mobility Report, crash rates were up 14% from the previous year. A total of 713 people died in car accidents in the Houston region – an increase of 16% from 2015. Throughout the state of Texas, the number of fatalities in auto accidents was 3,773 people in 2016. Gun-related violence is another common cause of death in the Houston area. In 2016, 3,353 Texans died because of firearms. Guns are the second-leading cause of accidental child death in Harris County.

Texas Wrongful Death Statistics

If you have a loved one that lost their life due to the negligence of another person, the Houston wrongful death attorneys at Brian White & Associates can help. Our team has over 20 years of experience representing families and loved ones who have lost someone prematurely, and we want to help you get the compensation you deserve. Contact our Houston-based law office today to speak with one of our lawyers for a FREE initial consultation (713) 224-4878.

Client Review


“I’ve just had a case settled with Brian White for a significant sum within one month of walking into his office.” – Erica G.

Practice Areas