Difference Between a Wrongful Death and Survival Lawsuit in Texas

Undefeated Texas Wrongful Death Lawyer

Losing someone you love because of another party’s negligence changes every aspect of your life. In the middle of your grief, the questions come fast and without clear answers: Who will pay for the medical bills and funeral expenses? How will your family manage without the financial and emotional support your loved one provided? Most importantly, will the negligent parties ever be held fully accountable for the life-shattering harm they’ve caused?

While no amount of money will ever make up for such a loss, Texas law does provided two distinct paths to pursue the justice and compensation your family so desperately need: A wrongful death lawsuit, through which you can seek to recover both the economic and non-economic losses incurred due to your loved one’s death, and a survival claim, which seeks compensation for the pain, suffering, and financial damages the deceased experienced between the time of their injury and their passing.

Our Undefeated Texas Wrongful Death Lawyers have recovered billions for families devastated by fatal truck and 18-wheeler crashes, oilfield accidents, maritime and offshore disasters, and plant, refinery and pipeline explosions. Because we understand just how hard it is to rebuild in the wake of a preventable death, we leverage every resource, every bit of experience, and every available advantage to hold negligent companies accountable and help our clients to recover the maximum compensation possible under Texas law.

What Is a Wrongful Death Claim in Texas?

When a loved one is taken unexpectedly, it loss touches every part of family life—from income and stability to guidance, companionship, and the sense of security that person once provided. A Texas wrongful death claim is meant to compensate surviving family members for the emotional, financial, and day-to-day impacts resulting from such a loss.

Who Can File a Wrongful Death Lawsuit?

Not every relative is eligible to file a wrongful death lawsuit. Rather, Texas limits these claims to a very small group of close family members, all of whom must have had a legally recognized family relationship with the deceased:

The spouse: This includes both a legally married spouse or a spouse in a common-law marriage, provided that the relationship can be proven under Texas law.
Children: Texas does not distinguish between minor and adult children, and an adopted child has the same legal rights as a biological child.
Parents: A parent may bring a wrongful death claim for the loss of a biological or adopted child, regardless of the child’s age.

If none of the eligible family members file a wrongful death lawsuit within the first three months of their loved one’s death, the executor or administrator of the estate may do so on their behalf. However, they must step aside if any eligible family member objects.

What Damages are Recoverable in a Texas Wrongful Death Lawsuit?

Because the claim belongs to the surviving family—not the estate—the damages recoverable in a Texas wrongful death lawsuit focus on what those individuals have personally lost, including:

Financial Support

Families can recover compensation for the income, benefits, and earning capacity the deceased would likely have provided over their working lives. This includes raises, promotions, bonuses, and long-term career growth that would reasonably have occurred.

Household and Caregiving Services

Many people contribute essential work at home—childcare, supervising homework, cooking, maintaining the home, caring for aging parents, managing finances, and countless daily tasks. Losing this support places significant additional burdens and expenses on the remaining family members.

Companionship, Love, Comfort, and Guidance

Texas recognizes the emotional and relational impact of losing a spouse, parent, or child. These losses include diminished emotional support, mentorship, affection, stability, and the unique roles the person filled in family relationships.

Mental Anguish

Surviving family members may be entitled to compensation for the emotional pain, suffering, and trauma related to their loss. These damages acknowledge the grief, distress, and long-term impact that often accompany a sudden or preventable death.

Inheritance

This covers the value of assets the deceased likely would have accumulated and passed down if they had lived out a normal life expectancy. It accounts for both savings and long-term financial opportunities the family has now lost.

Funeral and Burial Expenses

These costs can place a significant and immediate financial burden on those left behind, which is why Texas allows wrongful death plaintiffs to recover compensation for reasonable expenses—such as costs for burial, cremation, caskets, and headstones—incurred by the surviving family.

Survival Claims in Texas

Instead of compensating the family for the impact of their loss, a Texas survival claim focuses on what the deceased experienced between the moment of injury and the time of death. Such claims are intended to recover the damages the deceased would have been entitled to pursue if they had survived—essentially continuing the personal injury claim the person would have filed on their own behalf.

Unlike a wrongful death lawsuit, Texas requires that a survival claim be filed by the estate’s personal representative—either the executor named in the will or an administrator appointed by the court when no executor exists.

What Damages are Recoverable in a Texas Survival Claim?

Damages awarded in a Texas survival claim reflect what the deceased endured or lost before their passing, not what the family is experiencing afterward. Because some deaths happen instantly and others occur hours, days, or even months later, the scope of a survival claim depends on what the evidence shows about the person’s conscious pain, medical care, and financial losses during that period.

Medical Expenses Related to the Final Injury: This includes the cost of emergency treatment, hospitalization, surgeries, diagnostic testing, medications, life support, and any other medical care provided after the injury and before death. These costs can be substantial, especially when the person survived for a period of time.
Conscious Pain and Suffering: If the deceased was aware of their injuries—even briefly—the estate may recover damages for the physical pain, fear, distress, and mental suffering the person experienced. Medical records, witness accounts, and expert testimony often play an important role in establishing whether the person experienced conscious pain.
Lost wages and Benefits: If the person survived for any amount of time, the estate may recover the income and employment benefits they lost during that period. This is separate from future lost earnings, which belong in the wrongful death claim.
Property Damage: If the death resulted from an event that also damaged personal property—such as a vehicle in a crash—the estate can recover the cost to repair or replace the damaged property.
Funeral and Burial Expenses: These expenses can be recovered in a survival claim when they were paid from the deceased’s estate.

How are Proceeds From a Survival Claim Distributed in Texas?

Because a survival claim belongs to the estate, the compensation recovered is treated like any other asset the deceased owned at the time of death. This means any monetary award won’t be paid directly to the surviving spouse, children, or parents, as wrongful-death damages are.

Once the proceeds are added to the estate, they may first be used to cover any expenses or debts incurred by the estate. Whatever remains is then distributed through probate. If the deceased left a valid will, the executor must adhere to its terms, which may leave everything to a spouse, divide the proceeds among several beneficiaries, or direct the funds elsewhere.

When there is no will, Texas intestacy law determines who inherits. The distribution depends on the deceased’s family structure—for example, whether they were married, whether they had children, and whether the property is considered community or separate property. As a result, the funds may go to a spouse and children, or, in cases where the person died unmarried and childless, to parents or siblings.

Punitive Damages in Texas Wrongful Death and Survival Claims

In Texas, punitive damages—called exemplary damages—are available in both wrongful death and survival claims when the evidence shows gross negligence or a willful disregard for safety. These damages aren’t meant to compensate the family or the estate. Insteady, they are intended to punish especially dangerous conduct and deter defendants from repeating it.

To recover exemplary damages, it must be shown that a defendant knew about an extreme risk, understood the likelihood of serious harm, and chose to ignore it. This often involves proving that a company overlooked repeated safety violations, failed to correct known hazards, or continued dangerous practices despite prior incidents or warnings.

Texas law places limits on punitive damages in many cases, capping them at the greater of either (1) two times the economic damages plus an amount equal to the non-economic damages (up to $750,000), or (2) $200,000. However, these caps do not apply when a defendant intentionally caused the harm.

Texas Deadlines for Wrongful Death and Survival Claims

Texas gives the family of the deceased and their estate two years from the date of death to file both wrongful death and survival claims. Once that deadline passes, the case will likely be dismissed — no matter how catastrophic the loss or how obvious the defendant’s negligence.

A spouse, children, or parents can file a wrongful death lawsuit at any point within the two-year window. If they haven’t filed within the first three months, the estate’s personal representative is allowed to step in and do so— but they’re still bound by the same two-year cutoff. If no executor or administrator has been appointed yet, certain heirs can temporarily file a survival claim to ensure the statute of limitations doesn’t expire.

Waiting even a few months to hire an attorney and begin the process of filing either claim can make it harder to secure critical evidence, interview witnesses, and prove exactly how the defendants’ negligence caused the deceased’s personal injuries and eventually their wrongful death. It’s in your family’s best interest to consult with an experienced wrongful death lawyer as soon as possible. By doing so, you’ll ensure your attorney has the time needed to identify all at-fault parties, secure critical evidence, and build the strongest possible case well before the deadline passes.

What Must I Prove to Win a Wrongful Death or Survival Claim in Texas?

To win a wrongful death or survival claim in Texas, you must clearly establish four critical elements:

Duty of Care: You must be able to prove the defendant had a legal duty to act with a certain level of care toward your loved one. For example, an oilfield operator has a duty to maintain a safe worksite, while a trucking company has a duty to ensure a commercial driver is fit to operate a big rig.
Breach of Duty: You must also show the defendant breached their duty of care. A breach can include failures such as failing to maintain equipment or demanding that workers rush a job to meet tight production or delivery deadlines.
Causation: You must connect the defendant’s breach of duty directly to your loved one’s personal injury and ultimate death. This may require accident reconstruction, metallurgical testing, expert testimony, and access to records and vital evidence in the defendant’s possession.
Damages. You must be able to show that the defendant’s negligence resulted in physical, financial, and emotional damages for both the eligible family members and the deceased.

Contact our Undefeated Wrongful Death Attorneys for a Free Consultation at 1-888-603-3636 or by Clicking Here

After the tragic and unexpected loss of a loved one, taking legal action might be the last thing on your mind. But pursuing wrongful death and survival claims against the negligent parties may be the only way you and your family can ensure accountability and safeguard your future.

In just the past decade, our Texas Wrongful Death Attorneys have recovered billions in record-breaking verdicts and settlements for our clients and their families, including:

If you lost someone you love because of another’s negligence, our Houston-based wrongful death lawyers are here for you. Call 1-888-603-3636, click “Chat Now” on our website, or send a confidential message through our Contact Us form.

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The Difference Between a Wrongful Death and Survival Lawsuit in Texas