In Texas, only a surviving spouse, children, or parents may file a wrongful death claim. Siblings cannot, even adult siblings who were close to the person who died. A separate survival action belongs to the estate and recovers what the person lost before dying. Both must generally be filed within two years of the date of death.
Who may file a wrongful death claim in Texas
The Texas Wrongful Death Act gives the right to sue to a defined and closed list of people: the surviving spouse, the children, and the parents of the person who died. Adopted children and adoptive parents are included.
Siblings may not file. Neither may grandparents, grandchildren, aunts, uncles, cousins, a fiancé, an unmarried partner, or a stepchild who was never legally adopted, regardless of how close the relationship was or who the deceased person lived with. Families find this harder to accept than any other part of Texas law in this area, and a court cannot make an exception to it.
All eligible family members share one wrongful death action. Any one of them may file on behalf of everyone, or they may file together. What they cannot do is bring separate competing lawsuits over the same death.
The claim exists only where the death was caused by another’s wrongful act, neglect, carelessness, unskillfulness, or default. That is the same negligence proof any injury case requires, with the same evidence problems, on a much harder timeline for a grieving family.
The survival action: the estate’s separate claim
A second claim exists at the same time, and it is easy to miss. The survival action belongs to the estate, not to family members individually, and it is normally brought by the personal representative: the executor named in a will, or an administrator appointed by a probate court. If no representative has been appointed, the heirs may be able to bring it, but that adds a step.
The survival claim is the claim the person who died would have had if they had lived. It covers the period between the injury and the death, including what they consciously suffered.
The distinction is not academic. The two claims are brought by different people, recover different things, and are distributed differently. Wrongful death proceeds go to the statutory beneficiaries and are generally not estate assets, while survival proceeds pass through the estate and can be reached by the estate’s creditors.
What each claim recovers
The two claims cover different losses, which is why serious cases usually plead both.
Claim
Who brings it
What it recovers
Wrongful death
Surviving spouse, children, parents
Loss of companionship and society, mental anguish, lost financial support, lost household services, and loss of inheritance
Survival
The estate’s personal representative
The decedent’s conscious pain and mental anguish before death, medical expenses from the injury, and funeral and burial expenses
General categories under the Texas Wrongful Death Act and the Texas survival statute. What is actually pleaded depends on the facts and on counsel’s judgment.
Caps, and where they do not apply
Texas places no cap on non-economic damages in ordinary negligence cases. Loss of companionship and mental anguish are not limited by statute the way medical malpractice damages are.
Exemplary damages may be available where the death resulted from gross negligence or a willful act. They are normally capped at the greater of $200,000, or twice economic damages plus non-economic damages up to $750,000 (CPRC §41.008). That cap does not apply to certain felony conduct, including intoxication assault and intoxication manslaughter (CPRC §41.008(c)), which is directly relevant in drunk driving death cases.
The two-year deadline runs from the date of death
The deadline is two years, and in a wrongful death case it runs from the date of death, not from the date of the injury (CPRC §16.003). When someone is hurt and dies weeks or months later, those are two different dates, and the wrongful death clock starts on the later one.
Two variations matter. A beneficiary who is a minor has the limitations period tolled during minority, generally until age 20 (CPRC §16.001), so a young child’s claim can outlive an adult beneficiary’s. And where a governmental unit is involved, a written notice deadline arrives long before the two years: six months statewide under CPRC §101.101, and some city charters require notice sooner.
Treat two years as an outer boundary rather than a schedule. Vehicles are repaired or sold for salvage, video is overwritten, employers reassign crews, and witnesses move. Families who wait until the anniversary approaches usually find the proof has thinned out.
What can reduce or limit a recovery
Several rules can change the size of a recovery or where it can be pursued.
Shared fault. Texas uses a 51% bar. If the person who died is found more than 50% responsible, there is no recovery; at 50% or less, the award is reduced by that share (CPRC §33.001, §33.012). A defendant is jointly liable for the whole judgment only where its own share exceeds 50% (CPRC §33.013), and defendants may designate a responsible third party, generally at least 60 days before trial (CPRC §33.004).
Government defendants. Damages against governmental units are capped by statute: $250,000 per person and $500,000 per occurrence for municipalities, and $100,000 per person and $300,000 per occurrence for counties and other local units (CPRC §101.023).
Work-related deaths. If the employer subscribed to workers’ compensation, comp is generally the exclusive remedy against that employer, though claims against negligent third parties survive.
Taxes. Compensatory damages for physical injury are excluded from gross income under IRC §104(a)(2). Punitive damages and interest are taxable.
Getting started without making it harder
Two early decisions save families a great deal of friction. First, agree on who will speak for the family, since one action covers all the beneficiaries and competing filings help no one. Second, find out whether a probate step is needed, because the survival claim generally requires a personal representative.
In the meantime, preserve what you can: the vehicle before it is salvaged, phone and employment records, the autopsy and medical records, and the names of everyone who was present. Decline recorded statements to the other side’s insurer until you have had advice, and keep every bill and receipt.
Jim Ross Law Group offers a free consultation, in person or by phone, at 817-275-4100, and there is no fee unless we win.
Frequently Asked Questions
Can a brother or sister file a wrongful death claim in Texas?
No. The Texas Wrongful Death Act limits the right to file to the surviving spouse, children, and parents. Siblings are not included, whether they are adults or minors and regardless of how close they were. A sibling who serves as executor or administrator of the estate can still bring the separate survival action on the estate’s behalf.
My mother and I both want to file. Do we file separate lawsuits?
No. There is one wrongful death action shared by all eligible beneficiaries. One person may file for everyone, or you may file together, but separate competing suits over the same death are not how it works. Deciding early who files and with which lawyer avoids a procedural fight that helps only the defendant.
Do we have to open a probate estate to bring a claim?
For the wrongful death claim, generally no, because it belongs to the family members directly. For the survival claim, usually yes, because it belongs to the estate and is normally brought by an executor or a court-appointed administrator. Where no representative has been appointed, heirs may sometimes proceed, but it adds time and should be evaluated early.
What if the person who died was partly at fault?
The claim survives unless they were more than 50% responsible. Texas applies a 51% bar, so at 50% or less the recovery continues and is reduced by that percentage. Insurers routinely argue a higher share than the evidence supports, which is one reason preserving physical evidence and locating witnesses early matters so much.
How is the money divided among the family members?
Not automatically in equal shares. In a wrongful death case the damages are apportioned among the eligible beneficiaries in proportion to the injury each of them suffered, which can differ substantially between a spouse, a young child, and a parent. Survival damages follow a different route entirely, passing through the estate.
Is a wrongful death settlement taxable?
Compensatory damages for physical injury are excluded from gross income under IRC §104(a)(2). Punitive damages and interest are taxable. Because a settlement often mixes categories and involves an estate, the allocation should be reviewed with a tax professional rather than assumed. This page is not tax advice.
My husband died four months after the crash. When does the clock start?
For the wrongful death claim, the two-year period runs from the date of death, not from the crash. The survival claim and any claim for his own injuries follow their own analysis, and the dates can differ. When injury and death are separated by months, have the deadlines confirmed rather than counting from the accident.
Can we file if the death happened on the job?
It depends on the employer’s coverage. If the employer subscribed to workers’ compensation, comp is generally the exclusive remedy against that employer, with death and burial benefits paid through the system. Claims against negligent third parties, such as an equipment manufacturer or another contractor on site, are separate and survive.
This page is for general information only and is not legal advice. Reading it does not create an attorney-client relationship. Every case is different and past results do not guarantee or predict a similar outcome in any future case. Jim Ross Law Group, P.C., 2201 E Lamar Blvd #110, Arlington, TX 76006.