When you lose a loved one, you may need to settle their estate and finish any business they did not complete before they passed. If the death involved someone’s negligence, this process may include filing a personal injury lawsuit. If this happens, the Texas Survival Statute may be important.
The Texas Survival Statute states that an executor or heir can file a survival claim for an injury that the deceased victim suffered. Note that the survival claim is not itself a cause of action. It lets you pursue a personal injury claim that the deceased could have brought if they had lived. So, just because the person passed away does not mean that you cannot attempt to obtain justice for them. These are complex legal matters, and you need the right injury attorneys to handle your claim for you.
Differences Between A Survival And Wrongful Death Claim
It is easy to get survival and wrongful death claims confused. But these are separate legal actions that are detailed under different state laws. The key difference between the two are:
- The survival claim lets the estate executor or heir file a personal injury claim from an injury the deceased had before they died.
- The wrongful death claim compensates you for the harm suffered when your loved one passed away.
Also, an award for the survival claim is given to the estate of the deceased and is provided to beneficiaries per their will. If there is no will, the funds are distributed according to the Texas intestate succession laws. On the other hand, a wrongful death award compensates beneficiaries without the state of Texas being involved.
What Is The Purpose Of A Texas Survival Claim?
The state legislature developed the survival statute to provide surviving family members the right to file a claim for their relative’s estate for their anguish and pain before they died. A survival claim gives the estate representative a chance to obtain the compensation that the person would have recovered if they had not passed away.
Key Parts Of A Texas Survival Claim
A Texas survival claim only occurs in a situation where someone harmed your loved one before they passed away. A survival claim in Texas has the following elements:
- As the plaintiff, you represent the estate of the deceased.
- The decedent possessed a personal injury cause of action.
- The deceased could have sued in a personal injury lawsuit if they had lived.
- The wrongful act of the defendant caused the victim to die.
Keep in mind that the personal injury claim does not need to stem from the cause of death; as a member of the family, you can file a Texas survival claim for another incident. For instance, suppose the decedent ate poisoned food at an Odessa restaurant and became violently ill. Because of the sickness, he was fired and had thousands in medical bills. Three months later, just before he filed the personal injury claim, he was struck and killed by a drunk driver.
In this scenario, the death did not relate to the poisoned food, but you can still file a personal injury claim against the restaurant that poisoned him.
Or, the survival claim could stem from what the person died from and is related to how the victim suffered before their death. Suppose the decedent suffered tremendous pain at the car accident scene and in the ER before he passed. You could bring a survival claim against the drunk driver for your loved one’s pain and suffering and medical bills before they passed.
Some of the damages you could be entitled to in a Texas survival action are funeral and burial costs; medical costs; property damage, and lost income because of injuries before the death.
When Should A Texas Survival Claim Be Filed?
You have two years from the time the injury occurred to file a survival claim in Texas. This means that the clock does not start to run when your loved one dies. Instead, it begins when the injury occurred, which could have been well before they died. Note that the heir or executor can pursue the survival claim for injuries that the deceased victim suffered.
Pay close attention to the Texas statute of limitations so you do not lose the chance to file a survival claim. It’s wise to contact a personal injury lawyer as soon as possible to have the case reviewed.
Examples Of A Texas Survival Claim
To better understand a Texas survival claim, let’s review two examples. Suppose a man was severely injured in an Odessa car accident and needed extensive hospitalization for his injuries. While the man wanted to file a claim for his car accident injuries while he was in the hospital, he died before he could talk to a lawyer. In this case, his personal injury claim did not go away because he passed away. Instead, the claim is passed to his estate, and his surviving family can pursue it.
Another example: A man is seriously hurt in a drunk driving car accident and goes into a coma. He never wakes up. In this case, the family also can file a survival claim for her injuries before she dies. According to the survival statute, the family inherited the man’s personal injury claims.
Wrongful Death Lawsuits In Texas
As noted earlier, a survival action moves forward as if the person is still alive. On the other hand, the survivors file a wrongful death claim on their behalf to receive compensation for their losses. The surviving parents, spouse, or children may file these claims in Texas. All of these parties can file the claim together, or one can do so to benefit the other parties.
If none of these family members file the wrongful death action within 90 days of the death, a personal representative or executor can file the action unless all family members have an objection. Also, a wrongful death claim can be filed in Texas if an unborn child is killed in some situations. Losses that you can receive in a Texas wrongful death lawsuit include:
- Economic losses, such as loss of the deceased’s inheritance and support
- Loss of advice, maintenance, care, and counsel that the decedent could have provided
- Mental suffering, pain, and anguish
- Loss of love, comfort, and companionship
Remember that the damages you receive in a survival or wrongful death claim depend on the circumstance of your claim. You may be able to file both types of claims, which can result in significant compensation for your family.
Of course, no amount of compensation can bring your loved one back to life, but receiving an award or settlement may offer a sense of justice and closure. It also can reduce your financial burdens for years to come.
Who Can File A Wrongful Death Lawsuit?
In Texas, only certain parties can file a wrongful death lawsuit: the surviving spouse, parents, and children. However, if none of those parties file a claim within three months of the person’s death, the executor or personal representative can file the claim. Some of the damages that are available in a wrongful death lawsuit are:
- Lost income and related financial support
- Loss of household services the deceased would have given
- Mental anguish and pain that the survivors experience
- Lost companionship, love, comfort, and society
- Lost inheritance
Questions About Wrongful Death In Texas
Here are some common questions and answers about wrongful death claims in Texas:
Is A Survival Claim The Same As A Wrongful Death Lawsuit?
No. The Texas Survival Statute states that the decedent’s estate representative or heir can pursue a personal injury claim that the decedent would have filed if they had lived after a fatal accident. On the other hand, a wrongful death claim is a separate compensation claim that can be filed by the decedent’s children, spouse, or parents based on the losses they had because of the death of their loved one.
Can A Family Sue For Wrongful Death If The Decedent Never Worked?
Yes. Even if your loved one did not have a job, they still may have contributed care, services, and support to your family. As the plaintiff, you may be compensated for the services your loved one provided and would have continued to provide in the future. For example, you could receive compensation for child-rearing, housekeeping, and related work. You also could be entitled to loss of companionship and funds for medical and funeral costs.
Can You Sue For Pain And Suffering The Deceased Had Before They Died?
A wrongful death claim compensates the plaintiff, but a pain and suffering award typically pays the person who had the pain and suffering. You may be able to be compensated for the person’s pain and suffering in a Texas wrongful death claim. If you have questions about the damages you can receive in a wrongful death claim, talk to your personal injury attorney in Odessa.
What Are Exemplary Damages In A Wrongful Death Lawsuit?
In a wrongful death lawsuit, you may receive actual damages for the losses you incurred, including medical bills, funeral costs, lost future wages, and pain and anguish. However, in some cases, you could be eligible for exemplary or punitive damages. Exemplary damages are a monetary penalty that is imposed on the at-fault party to punish them for especially reckless behavior. It also serves as an example to others about behavior that society will not tolerate.
Exemplary damages can be considered when a wealthy individual, company, or hospital is responsible for someone’s death. In a Texas wrongful death case, exemplary damages are possible if the death is due to a willful act or omission, or if it was gross negligence.
It’s easy to confuse a survival and wrongful death action. These are separate actions that can be filed together but exist for different reasons:
- A survival action pays damages for the decedent’s injuries between the time they were hurt and the time they died.
- A wrongful death lawsuit pays compensation for the family’s injuries from the date of the person’s death.
If you have questions about which legal action to file, talk to your personal injury attorney in Odessa for a consultation on your case. If you need to file a survival action or wrongful death lawsuit, it is recommended to have a personal injury attorney assist you. Both types of litigation are complex, and it is easy to make mistakes if you are not familiar with the law.
Contact Our Odessa, TX Personal Injury Attorney Today
The Texas survival statute is a key legal provision allowing certain causes of action to live on after the plaintiff dies. If you are considering a wrongful death claim in Texas, you should also understand the survival statute. Whether you file a survival or wrongful death action, you may be eligible for compensation for your losses. Please contact our Odessa, TX, personal injury attorneys today at Cesar Ornelas Injury Law for more information.
Originally from Kyle, Texas, Mr. Ornelas is a first-generation college graduate and a first-generation attorney.
Licensed in Texas, Cesar Ornelas’s nationwide practice is entirely contingency fee-based and consists of a wide variety of catastrophic personal injury and death cases. He has represented countless victims of catastrophic accidents across the United States.