When an individual is killed in an accident that is the result of negligence, the family of that individual has the right to pursue a legal action against the party responsible for the accident and death. This action may come in the form of a wrongful death claim, a survival action, or both. Who is able to file the suit is dependent on the action that is being pursued.
What is a Wrongful Death Claim?
A wrongful death claim is a claim in which a family seeks damages related to the loss of a loved one. The important thing to remember about wrongful death claims is that they are not actually filed on behalf of the deceased person; instead, they are filed on behalf of the individuals affected by the decedent’s death.
As such, the damages family members seek when filing a wrongful death claim are:
- Loss of quality of life
- Loss of love and emotional support
- Loss of financial support
- Loss of companionship
- Loss of society
Who Can File a Wrongful Death Claim in Texas?
Texas law is very clear on who can and can’t file a wrongful death claims. Wrongful death beneficiaries are limited to three categories:
Other relatives, even those that may be considered immediate family like brothers and sisters, are barred from pursing wrongful death claims in Texas.
What Is a Survival Action?
A second option that may be available following the death of a loved one is a survival action. The name can be confusing as the claim is actually filed for a person who has passed away, but understanding the purpose of the claim also helps to explain its title.
When a survival claim is filed on behalf of a deceased person, the victim’s family is essentially asserting that:
- The person died because of the defendant’s negligence.
- This negligence caused pain and suffering to the person before they died.
- Had the person survived, he or she would have been able to pursue legal action against the defendant to recover compensation for pain and suffering.
- The defendant should not be able to avoid liability for pain and suffering just because the person died.
- The pain and suffering damages should be paid to the deceased person’s estate.
Beyond pain and suffering damages, a survival claim can seek medical costs associated with medical procedures procured prior to the victim’s death as well as funeral and burial expenses.
Who Can File a Survival Action in Texas?
Because a survival action is seeking damages on behalf of the decedent’s estate, the claim must be filed by an estate representative or legal heir to the estate. When there is not a legal beneficiary to file a claim, relatives may pursue the action jointly.
When filing a survival action, your attorney may engage the services of a qualified probate attorney who will “open an estate” in order to ensure the claim is properly represented in court.
Can I File Both a Wrongful Death Claim and a Survival Action in Texas?
Because the two statutes represent two distinct actions, they may be consolidated into a single lawsuit depending of the circumstances of the death. This means that the lawsuit would seek survival action damages on behalf of the decedent and wrongful death damages on behalf of the decedent’s loved ones.
However, in order for either of the claims to be successful, it is essential that the family speak with an experienced wrongful death attorney. Consulting with an attorney will allow you to understand the full scope of your rights, any potential obstacles your case might face, and how best to pursue legal action against those responsible for your loved one’s death.
Contact an Experienced Wrongful Death Attorney
If you have lost a loved one due to the negligence of an individual, company, or other entity, contact Thomas J. Henry. Our experienced wrongful death attorneys are available 24/7, nights and weekends to talk with you and your family about your potential case. At Thomas J. Henry, we offer a free case review, and you don’t owe a thing unless we win your case. Our results speak loudly of our success in obtaining successful verdicts, settlements, and judgments for our clients. Let us help you and your family recover the compensation you deserve.