Texas Wrongful Death & Survival Actions
When a loved one dies as a result of a wrongful act, two kinds of actions can be brought – a wrongful death action and a survival action.
Wrongful Death Actions
The Wrongful Death Act allows surviving spouses, parents, and children to bring a wrongful death action for their own personal injuries suffered as a result of the decedent’s death. These injuries include: 1) pecuniary (monetary) losses, 2) mental anguish, 3) loss of companionship and society, 4) loss of inheritance, 5) pre-judgment and post-judgment interest, and 6) court costs. Additionally, exemplary damages are available when the death is caused by a willful act or omission or gross negligence.
Generally, a Texas wrongful death claim must be brought within two (2) years from the date the claim accrues, which is usually the date of the death. However, special rules apply if the decedent was injured and did not immediately die. When trying to determine the time within which you must bring the action, it is very important that you consult with an attorney because the rules can be tricky to interpret, and the claim may have to be filed much sooner than you would think.
The elements of a wrongful death claim are as follows:
- The person filing the suit (plaintiff) is either a statutory beneficiary (spouse, child or biological parent) of the decedent; or
- The executor/administrator of the decedent’s estate, if a statutory beneficiary does not file suit within three months of the decedent’s death; and
- The defendant (whom/what is being sued) is a person or a corporation; and
- The defendant’s (or its agents’ or servants’) wrongful act, neglect, carelessness, unskillfulness, or default caused the death of the decedent; and
- The decedent would have been entitled to bring an action for the injury if she had lived; and
- The plaintiff suffered actual injury.
Survival Actions
A survival action permits an authorized representative of the decedent to sue for the decedent’s personal injuries. Survival plaintiffs recover damages for the injuries suffered by the decedent prior to their death. These injuries include any damages the decedent suffered as a result of the defendant’s wrongful conduct, including pain and mental anguish. If the defendant’s wrongful conduct caused the decedent’s death, medical and funeral expenses may be recovered. Additionally, exemplary damages are available when the death is caused by a willful act or omission or gross negligence. The proceeds of a survival action go to and become assets of the decedent’s estate.
The elements of a survival action are as follows:
- The plaintiff is the legal representative of the decedent’s estate; and
- The decedent had a cause of action for personal injury to her health, reputation, or person before she died; and
- The decedent would have been entitled to bring an action for the injury if she had lived; and
- The defendant’s wrongful act caused the decedent’s injury.
The limitations period for a Texas survival action is the same as the limitations period for the decedent’s underlying cause of action. Again, when trying to determine the time within which you must bring the action, it is very important that you consult with an attorney because the rules can be tricky to interpret, and the claim may have to be filed much sooner than you would think.
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