Texas Wrongful Death Attorney

Wrongful Death Claims FAQs

What is a Texas wrongful death claim?

Historically in Texas, the spouses, parents and children of someone who was killed in an accident could not sue for the damages that they suffered because of their loved one’s death. The Wrongful Death Act changed that by creating a new cause of action that lets these persons bring suit in the event they have actual damages from the death of their spouse, child or parent.

A wrongful death claim lets family members and the deceased’s estate recover compensation after someone causes the death of their spouse, parent or child.

What law establishes wrongful death claims in Texas?

Texas Civil Practice and Remedies Code Title 4, Chapter 71 serves as the basis for wrongful death and survival lawsuits in Texas.

What compensation is available on a wrongful death claim in Texas?

A person who prevails on a wrongful death claim may be able to recover what are known as actual damages and exemplary damages.

Actual damages include:

• Financial losses, such as the loss of the deceased person’s earning capacity and the value of the care, maintenance, services, support, advice and counsel he or she would have provided to family members.
• Mental anguish, which refers to your emotional pain, torment and suffering from the death of your family member.
• The loss of the positive benefits flowing from the love, comfort, companionship and society from the death of your family member.
• Loss of inheritance, referring to what the deceased person would have accumulated and left to you if he or she had lived a normal expected lifetime.

Exemplary damages are recoverable on a wrongful death claim when the person’s death is caused by the defendant’s willful act or omission or gross negligence.

If I file a wrongful death claim, what do I have to prove to get compensation?

That you are a statutory beneficiary of the person who was killed. Statutory beneficiaries include the deceased person’s spouse, children, and parents.
That the defendant’s wrongful act caused the deceased person’s death.

I’ve heard about “survival” claims. Are they the same as a wrongful death claim?

No. Under the Texas Survival Statute, a deceased person’s heir or estate representative can assert a personal injury claim that the deceased person would have been able to assert if he or she had survived a fatal accident. A wrongful death claim is a separate claim for compensation that belongs to the deceased person’s spouse, children and parents, based on the loss of their loved one.

How long does someone have to bring a wrongful death claim?

Wrongful death claims can be subject to two statutes of limitations, which define how long someone can wait before bringing a claim. There is the limitations period on the claim that the deceased person could have filed. In Texas, that period is, in most cases, two years from the date of the person’s injury. There is also the limitations period on your own claim for wrongful death, which normally is two years from the date your spouse, child or parent died.

It’s important to consult with a qualified personal injury attorney without delay if you think you have a wrongful death claim, so you don’t risk losing the claim by waiting too long.

My brother or sister was killed. Can I file a wrongful death claim?

Unfortunately, no. Texas law does not allow siblings to bring a wrongful death claim for the loss of a brother or sister.

Who is included in the definition of “spouse” for purposes of a Texas wrongful death claim?

A spouse can bring a wrongful death action whether the couple’s marriage was formal or by common law. The claim can be brought, too, even if the spouses were separated when one of them was killed, and even if the surviving spouse remarried after the other’s death.

At this time, Texas law does not allow wrongful death actions by same-sex spouses.

What about adopted or illegitimate children? Adult children?

Any biological children of a deceased parent can bring a claim under the Texas Wrongful Death Act. An adopted child, who has been formally and legally adopted, can bring a wrongful death claim for the death of his or her adoptive parent, but not for his or her biological parent.

Adult children may sue for the wrongful death of a parent.

Does “parents” under the Texas Wrongful Death Act include adoptive parents, stepparents, foster parents or grandparents? What if a deceased child’s parents are divorced?

An adoptive parent may bring a wrongful death claim for the death of his or her adopted child, but no claim can be asserted by stepparents or foster parents. Nor can grandparents bring a suit for the wrongful death of a grandchild.

Divorced parents can bring a lawsuit for the wrongful death of their child in Texas.

Will I be able to afford a lawyer to represent me on a wrongful death claim? How much will it cost?

Most personal injury attorneys work on a contingency fee basis. That means the attorney gets paid only if you get a recovery on your lawsuit. Most often, the amount of the fee will be a percentage of your recovery. The fee percentage and the handling of costs and expenses to represent you will all be set out in a fee agreement when the attorney takes your case. Generally, if you don’t win anything on your case, you won’t owe anything to your attorney.