Texas Wrongful Death and Survival Claims: A Guide for Families

Beverly Law. Updated November 2026.

Two claims from one death

A fatal injury in Texas creates two claims. They are usually filed together, but they protect different people.

Both claims depend on the deceased’s own rights (§ 71.003(a)). In Russell v. Ingersoll-Rand Co., 841 S.W.2d 343 (Tex. 1992), the Texas Supreme Court held that if the deceased’s claim was already time-barred at death, both family claims were barred too.

Who can bring each claim

Under Texas Civil Practice and Remedies Code § 71.004(a), a wrongful death action is for the “exclusive benefit” of the surviving spouse, children and parents of the deceased. Siblings, grandparents and unmarried partners are not on that list.

Any one of those relatives may sue for the benefit of all of them. If none of them has filed within three calendar months after the death, § 71.004(c) says the executor or administrator shall bring the action, unless every eligible relative asks the representative not to.

The survival claim belongs to the estate, so the personal representative normally files it. In Shepherd v. Ledford, 962 S.W.2d 28 (Tex. 1998), the Court held that heirs may bring the survival claim themselves if they show that no estate administration is pending and none is necessary.

Filing deadlines

Section 16.003(b) gives two years to file “an action for injury resulting in death” and says the claim accrues on the death of the injured person. In Moreno v. Sterling Drug, Inc., 787 S.W.2d 348 (Tex. 1990), the Court held that the discovery rule does not extend this deadline, even when a family learns the cause of death later.

The survival claim is the deceased’s own injury claim, so its two years generally run from the injury under § 16.003(a). Section 16.062 suspends limitations for 12 months after a death, or until an executor or administrator qualifies, whichever comes first.

Health care claims under Chapter 74 have their own timing and notice rules.

What the wrongful death claim pays for

Section 71.010(a) lets the jury award damages “proportionate to the injury resulting from the death.” Under § 71.010(b), the jury splits the award among the eligible relatives, so each may receive a different amount.

Recoverable losses include:

• Lost financial support, household services, care and advice the deceased would have provided.
• Loss of companionship and society.
• Mental anguish. Since Sanchez v. Schindler, 651 S.W.2d 249 (Tex. 1983), parents can recover for mental anguish and lost companionship after the death of a minor child without proving a financial loss. See our Texas emotional distress FAQ.
• Loss of inheritance, meaning what the deceased would likely have saved and left to the family. Section 41.001(10) lists loss of inheritance as a type of future lost earnings.

Jurors weigh the deceased’s age, health, earnings and relationship with each relative. The wrongful death recovery cannot be taken by the deceased’s creditors (§ 71.011).

What the survival claim pays for

The survival claim recovers what the deceased could have claimed if they had lived. Typical items are:

• Conscious pain and mental anguish between the injury and death.
• Medical bills for treatment before death, limited to amounts actually paid or incurred under § 41.0105.
• Earnings lost between the injury and death.
• Funeral and burial expenses charged to the estate. In Landers v. B.F. Goodrich Co., 369 S.W.2d 33 (Tex. 1963), the Texas Supreme Court called the cost of a suitable funeral a charge against the estate that the survival claim can recover, as long as the defendant does not pay it twice. Relatives who paid the funeral themselves can claim that cost in the wrongful death action instead.

Pain and suffering requires evidence the person was conscious, so it may be small or absent after an instant death. The survival recovery is distributed through the estate.

When the person who died shared the blame

Texas uses proportionate responsibility under Chapter 33. The definition of “claimant” in § 33.011(1) includes the person who died, so the jury can assign a percentage of fault to the deceased in both claims.

Under § 33.001, there is no recovery if the claimant’s share of responsibility is greater than 50 percent. At 50 percent or less, § 33.012(a) reduces the damages by that percentage. If a jury finds the deceased 20 percent responsible, each award drops by 20 percent. At 51 percent, the family recovers nothing.

A defendant found more than 50 percent responsible is jointly and severally liable under § 33.013(b).

Exemplary damages and the Texas cap

Exemplary (punitive) damages punish the wrongdoer. Article XVI, Section 26 of the Texas Constitution makes anyone who commits a homicide “through wilful act, or omission, or gross neglect” liable in exemplary damages to the surviving spouse and heirs of the body. Section 71.009 allows them in wrongful death cases on similar grounds.

Under § 41.003, the family must prove the required misconduct, such as gross negligence, by clear and convincing evidence, and the jury must be unanimous on both liability and amount. Gross negligence (§ 41.001(11)) means knowingly taking an extreme risk with conscious indifference to others’ safety.

Section 41.008(b) caps exemplary damages at the greater of:

• two times the economic damages, plus noneconomic damages up to $750,000; or
• $200,000.

The cap does not apply to certain felonies listed in § 41.008(c), which include intoxication manslaughter. That exception often matters in drunk driving deaths. Chapter 33’s fault reductions do not apply to exemplary damages (§ 33.002(c)(2)).

Death on the job

If the employer carried workers’ compensation insurance (a “subscriber”), Texas Labor Code § 408.001(a) makes workers’ comp death benefits the exclusive remedy against the employer and its employees.

Section 408.001(b) leaves one opening: the surviving spouse or “heirs of the body” may recover exemplary damages when the death was caused by an intentional act or omission of the employer or by the employer’s gross negligence. Parents are not named in that subsection, and heirs of the body generally means the deceased’s children and their descendants.

If the employer had no coverage, the family can usually bring a regular negligence claim, as explained in our guide to work injuries with a Texas non-subscriber employer. Claims against outside parties, such as another driver or an equipment maker, are not barred either way.

Government defendants and medical malpractice

The Texas Tort Claims Act allows death claims against a governmental unit only in limited situations, mainly deaths caused by an employee’s use of a motor vehicle or motor-driven equipment, or by a condition or use of tangible property (§ 101.021). Exemplary damages are not available (§ 101.024), and § 101.023 caps recovery:

Written notice is due within six months of the incident under § 101.101(a), and a city charter may set a shorter period. Actual notice of the death can satisfy the rule.

Deaths caused by medical care fall under Chapter 74. Section 74.303 limits all damages in a wrongful death or survival action against a physician or health care provider, including exemplary damages, to $500,000 per claimant, adjusted for inflation since 1977. Past and future medical care expenses are outside that limit. Section 74.301 separately caps noneconomic damages.

What this means for your case

Start by protecting the evidence and the deadlines:

• Order certified copies of the death certificate.
• Keep the crash or incident report number, photos, texts and the deceased’s phone.
• Collect medical and funeral bills, pay stubs and tax returns.
• Decide as a family who will file before three months pass, and ask whether a probate case is needed for the survival claim.
• If a government vehicle, road or building was involved, plan on written notice within weeks.
• Do not give a recorded statement to the other side’s insurance company.

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Common questions

Related pages

Legal guides · Texas personal injury lawyers · Austin injury lawyers · Hurt at work for a Texas non-subscriber employer · Can you sue for emotional distress in Texas? · Comparative fault in California, Texas and Washington

Important: This page is general information, not legal or medical advice, and reading it does not create an attorney-client relationship. Every case is different; talk to a lawyer about yours. Texas cases are handled by the firm’s Texas-licensed attorneys. Last reviewed: November 7, 2026.