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How To Prove a Texas Wrongful Death Claim

If you suffer an injury accident, you can file a claim against the at-fault party. But how do you enforce a claim for someone who died in an accident? Texas (as well as every other state) resolves this situation by allowing certain people to file a wrongful death claim.

The Legal Elements of a Wrongful Death Claim

A legal element is a fact that you must prove to win your claim. To win a Texas wrongful death claim, you must prove the following legal elements:

  • An injury caused someone’s death;
  • Someone’s misconduct caused the injury (either doing something wrong or failing to do something they should have done) and
  • The deceased victim would have qualified to file a personal injury lawsuit if they had lived over the incident that caused the injury.

Under Texas’s wrongful death law, a fetus is considered a person, and its failure to be born alive generates a wrongful death claim if someone’s misconduct caused it.

The Standard of Proof

If the at-fault party’s misconduct constituted a crime, they might face criminal prosecution. In a criminal trial, the standard of proof is “beyond a reasonable doubt.” This is a challenging standard to meet. By contrast, in a civil lawsuit such as a wrongful death claim, the standard of proof is  “a preponderance of the evidence.”

A preponderance of the evidence means that the claimant’s evidence outweighs the defendant’s evidence, even if only by a small amount. The “preponderance of the evidence” standard is sometimes called the “more likely than not” standard. You can win under this standard even if you can only prove your case with a 51% certainty.

Inconsistent Results

Suppose Texas prosecuted the defendant for the victim’s death, but the defendant wins an acquittal. You might imagine you have no chance of winning your lawsuit against the defendant. However, this isn’t the case.

The ”preponderance of the evidence” standard is much easier to meet than the “beyond a reasonable doubt” standard. Consequently, you can win a lawsuit against someone who has already won an acquittal in criminal court for the same conduct. The highly publicized O.J. Simpson trials in the 1990s were excellent examples of this disparity.

Who Can File a Wrongful Death Claim?

To file a wrongful death claim, you must have standing to sue. Under Texas wrongful death law, the following parties have standing to sue:

  • The surviving spouse, children, and parents of the deceased victim; or
  • The personal representative (executor) of the victim’s probate estate (only if eligible relatives fail to file a wrongful death lawsuit within three months of the victim’s death).

No matter who files the lawsuit, the court will apportion damages to all of the relatives listed above.


The primary purpose of filing a wrongful death lawsuit is to collect damages. Following is a list of some of the damages available in a Texas wrongful death claim:

  • The deceased victim’s lost earnings (for the remainder of their life expectancy);
  • The surviving family members’ loss of “care, maintenance, services, support, advice, and counsel”;
  • The surviving family members’ psychological pain and anguish;
  • The surviving family members’ loss of “love, companionship, comfort, and society”; and
  • The victim’s beneficiaries’ projected lost inheritance.

Like the three legal elements listed above, you must prove your damages by a preponderance of the evidence.

Contact a Wrongful Death Lawyer

It is much more difficult to prove a claim than to assert it. Fortunately, proving claims is what victims’ personal injury lawyers do for a living. To prove a wrongful death claim, you must comply with strict rules of civil procedure and evidence.

You might settle a minor car accident claim without a lawyer. Don’t try this with a wrongful death claim. Wrongful death claims tend to be large, and defendants fight hard to avoid paying large claims. You can be sure that the defendant will hire a lawyer.

Contact Our Wrongful Death Law Firm in Austin, TX

If you’ve been injured in an accident in Austin and need legal help, contact our Austin wrongful death lawyers at FVF Law to schedule a free consultation with our team.

3101 Bee Caves Rd #301, Austin, TX 78746, United States
(512) 982-9328



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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