In the real world, many personal injuries result in death. At that point, the victim is obviously no longer around to bring claims of any kind. Yet the deceased’s family remains deprived of support, companionship, etc. How does the law keep the death of the victim from somehow working to the benefit of the person responsible for causing the death?
With the idea of a “wrongful death” claim that can be brought by the victim’s survivors.
Nature of Wrongful Death Actions
Wrongful death claims are based on what the deceased’s heirs have lost as a result of the death. In Texas, these losses can generally be described as:
- Loss of the support, services, care, etc. that the deceased would have provided
- Loss of the deceased’s companionship
- Mental anguish
- Diminished inheritance (value of the property the deceased would probably have added to the estate during a normal life span)
A statute specifically names those people entitled to bring a wrongful death claim. In Texas, the statute (Section 71.004 of the Texas Civil Practice and Remedies Code) allows wrongful death claims by the deceased’s surviving:
That sounds deceptively simple. Divorces, adoptions, and similar events frequently call the status of a claimant into question.
In most cases, there is more than one person entitled to bring a wrongful death action. The statute allows the action to be brought by all of the named survivors, or any combination of them can bring the action for the benefit of every person in the class. And, if no one in the class of eligible plaintiffs starts an action within three months of the deceased’s death, the deceased’s executor (or administrator) is required to bring the action unless all the named survivors request that an action not be brought.
Texas Wrongful Death Laws
Texas’ wrongful death statutes outline who may file a wrongful death claim, how long they have to file one, and the damages recoverable through a wrongful death claim. There are also separate laws concerning survival actions. While wrongful death claims seek to repay a decedent’s estate and compensate the victim’s family for their suffering, survival actions allow the claimants to receive compensation the decedent could have collected had he or she survived. This generally includes lost earnings and compensation for the pain and suffering the deceased experienced during his or her fatal illness or injury.
In Texas, a surviving spouse, parent, or child of a deceased individual may file a wrongful death claim, individually or as a group. Claimants have three months to file following the date of the death in question. After three months, a personal representative of the deceased’s estate may file a wrongful death claim, unless a surviving member of the deceased’s family specifically requests the representative not to do so. Legally adopted children and parents can also file wrongful death claims for the negligent death of an adopted child or parent. Siblings, whether biological or adopted, may not file wrongful death claims.
Claimants may file a wrongful death claim if the subject of the claim also faces criminal charges related to the death. For example, if a driver kills a person while driving under the influence, he or she will face criminal prosecution from the state as well as liability for civil actions from the victim’s family.
Yes, it is complicated, and yes the three month requirement creates some time pressure. It’s best to get the help of an experienced Texas wrongful death attorney as early in the process as possible.
“Survival Actions” are Different
Wrongful death claims aren’t the only cases that look to recover damages based on the death of someone. There are also “survival actions,” which can be confusing—after all, it is the “survivors” of the deceased who bring wrongful death claims. So who brings “wrongful death” actions, and who brings “survival actions” and what is the difference?
Survival actions are claims for the damages that the deceased suffered, and that the deceased would have been entitled to recover had the person not died. The deceased’s estate brings the action and any damages recovered become part of the estate, to be distributes according to the deceased’s will.
Typical damages in a survival action include:
- Funeral and burial costs with respect to the decedent’s wishes
- Lost earning capacity
- Lost value of personal and household services provided by the deceased
- Mental anguish and emotional suffering resulting from the death
- Lost inheritance, including lost value on retirement plans, savings accounts, or other financial assets that would have accrued additional value had the deceased survived
- Exemplary damages, which function like punitive damages in personal injury cases and seek to punish the at-fault party instead of compensating the victims
Survival actions allow claimants to receive compensation for damages that occurred between the moment of injury and the victim’s death. For example, if a decedent contracted a fatal illness due to negligence, the survival action would apply to the damages accrued from the time of first exposure until the victim’s death. This can include the victim’s pain and suffering during the final illness or injury, lost income from the moment of injury until death, and medical expenses related to the treatment of his or her final illness or injury.
Wrongful death cases can be very complex. Recovery depends on establishing that the defendant—the person being sued—is legally responsible for the death. Since any number of different accidents may have caused the death—vehicle accidents, gunshots, falls, and countless other mechanism—you need a Texas lawyer with wide experience in personal injury cases of all types, in addition to specific experience with the technical requirements of the wrongful death laws.
Dallas attorney Aaron Herbert has that experience. He is Board Certified as a Personal Injury Trial Specialist, is a life member of the Million Dollar Advocates, and is highly rated by Avvo. Aaron knows the value of settling the case when possible and taking it all the way to a court verdict if required to fight for the compensation you deserve for your personal injury damages.
Call and tell us what happened to your loved one. If you have a case, we can provide the legal expertise required to obtain justice for you and your family, allowing you to focus on recovering from the loss of your loved one.
“I first hired an attorney that is frequently on t.v. that sat on my case for almost two years and then not only dropped my case close to the statute of limitations by simply sending me a letter, but got the date of the accident wrong even though he had a copy of the accident report. I then contacted attorney Aaron Herbert and he met with me the same day, realized the statute of limitations ran that day, drafted and filed a lawsuit thirty minutes later and eventually he successfully resolved the case in litigation.” – Eric Smith