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The Difference Between a Survival Action and a Wrongful Death Claim in Texas

When an accident victim dies as a result of another’s negligence, survivors may be left with many expenses, losses and damages. These can include medical bills, funeral expenses, economic losses (such as lost earnings), and intangible losses on the part of the survivors, such as loss of companionship and all that comes with a relationship to a parent, spouse, or child of the person who was killed.

In Texas, these damages can be claimed through two separate actions, a wrongful death claim and/or a survival action. Both are civil actions, meaning they occur separate from any criminal charges. 

Understanding the kinds of damages you can claim for each action — and how to proceed with each — can be difficult. To help shed some light on the matter, we’ve created this guide for survivors to use as they begin to decide how to move forward with their wrongful death case. 

What Is a Wrongful Death Claim?

The Texas Civil Practices and Remedies Code defines a wrongful death as one that arises as a result of an individual or group’s “wrongful act, neglect, carelessness, unskillfulness, or default.” If there is evidence to show that another party caused or contributed to a victim’s death, then certain survivors of the deceased may bring forth a wrongful death claim. 

What kind of damages can be claimed?

Survivors have the right to sue for damages, both economic and noneconomic, including:

  • Funeral expenses
  • Medical bills
  • Out-of-pocket expenditures
  • Loss of household income
  • Loss of companionship
  • Mental healthcare
  • Loss of inheritance
  • Mental anguish

In some cases, if there is evidence of gross misconduct, some survivors may be able to sue for punitive damages as well. An example of this might be a drunk driver who causes the death of another individual. These damages are designed to punish the individual responsible for the death by awarding the defendants additional money. 

Who can file a wrongful death claim?

Texas law only allows certain individuals to file a wrongful death suit for damages. These include the following:

If there are multiple survivors — for instance a spouse and two children — each of those survivors have the right to bring their own claim. In those situations, the survivors might choose to join together in one action and agree how to divide the settlement or recovery. If the survivors choose to bring their own claims separately, and do not agree on how to divide the recovery, that matter might need to be decided in court.

Unfortunately, siblings, aunts and uncles, grandparents and other relatives do not have the right to file suit for wrongful death damages in Texas.

What Is a Survival Action?

A survival action, on the other hand, allows the survivors to sue for pain and suffering, medical bills and other expenses incurred by the deceased after the accident but before they passed away. In Texas, a deceased individual retains the right to sue for damages even after their death. Essentially, this suit proceeds as if the deceased were still alive and bringing the action themselves. 

The law requires this action be brought forth by the estate of the deceased, which must prove that the defendant acted negligently and caused the victim to incur medical expenses and/or conscious pain and suffering before their death. In a survival action, the estate of the deceased can also sue for the victim’s lost income before he or she died.

Can I File Both a Wrongful Death Claim and a Survival Action?

The answer is yes — in some cases. If an accident victim did not immediately pass away, surviving family members and the deceased’s estate have the right to sue for both wrongful death and survival claims. A wrongful death lawyer can help you understand your rights, obtain documentation proving damages, and decide which actions are right for your case. 

Does the Deceased Need an Estate?

In order to file a survival action, the beneficiaries must create an estate that fulfills the requirements listed in the Texas State Probate Code. The estate can be created after the victim’s death, but the request to establish the estate must be successfully admitted by the Texas probate court. This process outlines how the victim’s assets and liabilities will be handled. It also names an individual to act as the executor of the estate, the party that will be filing the survival action on behalf of the deceased.

Creating an estate that complies with legal requirements and filing with the Texas probate court is a complicated and difficult process. However, a probate attorney can help ensure that the estate is administered and filed correctly. A qualified wrongful death attorney can coordinate with you and recommend probate attorneys they trust to create an estate that is recognized by the Texas probate court. That way, you and other beneficiaries will have more options available to you as you pursue compensation.

However, to ensure the best outcome, you should consult with a wrongful death lawyer you can count on. At FVF Law, we have helped numerous wrongful death victims obtain compensation they need to pay outstanding debts and recover from the loss of a loved one. We also maintain sterling reviews from past clients on Yelp, Google, and AVVO. 

Instead of simply googling “wrongful death lawyer near me” and hoping you find a good law firm, contact a team you can trust. FVF offers a free case evaluation so you can understand your rights and make the best decision for your case. Get in touch today to arrange your consultation.



Fogelman & Von Flatern is a personal injury law firm that believes it matters why we practice law: to make sure good people in unfair circumstances who want reasonable options are taken seriously, especially by their attorney. We value transparency, compassion, and justice, and we strive to embody that in our practice. At FVF, you can trust that you've got the best people on your case, for the right reasons.

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