There is often confusion about Texas wrongful death and survival claims, but Dallas serious personal injury attorney, Ben DuBose, explains, “When tragedy strikes and a person dies because of someone’s negligent conduct, Texas law provides for two general types of recovery in our civil court system: wrongful death and survival claims.”
Survival claims
Survival claims are those personal injury claims the deceased individual would have if they were living. The individual’s death does not extinguish these claims. Rather, they “survive” their death and belong to the estate of the decedent. Survival claims include claims for pain, suffering, mental anguish, lost wages, as well as medical expenses related to treatment of the injury that caused the death.
Wrongful death claims
In addition, claims can be brought by the family of the decedent for wrongful death. Wrongful death claims exist by statute in Texas and belong to the family members of the decedent for the loss of their spouse, parent, or child.
How wrongful death and survival claims work together
DuBose points out that “while wrongful death and survival claims are separate claims, they are brought in the same lawsuit.”
A surviving spouse, parent or child may bring the wrongful death action. However, if none of those individuals have brought the claim within three months of the death of their loved one, the executor of the estate may bring the claim.
Surviving siblings do not have standing to bring a wrongful death action in Texas. However, most states have a wrongful death statute and the classes of relatives with standing to bring a claim vary from state to state.
In some Texas wrongful death claims, exemplary damages are available. Exemplary damages are permitted if the jury finds a wrongful death is caused by a willful act or omission, or by gross negligence. The purpose of exemplary damages is not to compensate the family, but to punish a wrongdoer and to make an example that willful or grossly negligent behavior will not be tolerated.
The award of damages in a Texas wrongful death claim is typically made by a jury. The jury allocates the damage award among the surviving family members in proportion to the injury they suffered as a result of the untimely death.
The Texas wrongful death statute can be found here.
