Filing a Wrongful Death Action and a Survival Action After a Loved One Dies

Losing a loved one as a result of a car or truck accident, a workplace accident or another type of personal injury accident can cause a great deal of grief and heartache. Additionally the death can cause the family to suffer major financial hardships, especially if the deceased person was the breadwinner. If you lost a family member in a tragic accident, you may be able to bring a wrongful death action and a survival action against the negligent party to obtain the compensation you deserve for your losses. Wrongful death and survival actions

What Is a Wrongful Death Action and a Survival Action?

A wrongful death action is a lawsuit pursued by the family members of a deceased person to compensate them for the loss of their loved one. A survival action is a claim that the deceased person could have filed against the negligent party if he had survived the accident to recover damages for injuries suffered from the moment of the accident to the time of death. 

Who Can File Wrongful Death and Survival Actions?

In a wrongful death action in Texas, the person filing a claim must be a statutory beneficiary. Only the following relatives of a deceased person would be considered a statutory beneficiary:

  • Spouse
  • Children
  • Parents

Under Texas’ wrongful death laws, siblings, cousins, stepparents, and other family members are not permitted to file a wrongful death action.

A survival action is filed by the deceased person’s estate. It is filed on the behalf of the estate by the estate’s personal representative—the person designated in the will or under Texas law to open an estate and distribute assets to the heirs of the deceased.

Many people may not realize that both of these claims can be brought at the same time. In a complicated family situation—when the deceased person was divorced or there was an estrangement in the family—these actions may be brought by different family members. For example, the spouse, children or parents could file a wrongful death action, but the personal representative pursuing the survival action could be a different family member.

Compensation in Wrongful Death and Survival Actions

The compensation that can be obtained in a wrongful death and a survival action is also not the same. The damages that are recoverable in a wrongful death action are to compensate the surviving family members for their own losses due to the sudden death of their loved one. Damages that can be obtained in a wrongful death lawsuit include:

  • Lost earning capacity of the deceased person
  • Lost care, maintenance, support, advice and services that the loved one would have provided if he had survived the accident
  • Mental and emotional pain and suffering
  • Loss of love, companionship and comfort
  • Lost inheritance, which includes the amount that the deceased person would have saved and left to his family members if he had lived a normal life expectancy
  • Exemplary damages to punish the negligent party where the death was caused by gross negligence or a willful act or omission

The damages awarded would be divided between the family members entitled to compensation in proportion to the injury each suffered.

In a survival action, the compensation awarded would be the amount that the deceased person could have recovered from the negligent party from the time of the accident until death. It can include the following types of damages:

  • Medical expenses incurred for the injuries suffered in the accident
  • Lost wages while the deceased person was receiving medical treatment for his injuries before his death
  • Pain and suffering that the deceased person endured
  • Funeral and burial expenses

The compensation in a survival action would be divided between family members or others entitled to inherit from the deceased person based on his will or Texas law if there was no will.

Statute of Limitations for Filing a Wrongful Death and Survival Lawsuit

The statute of limitations is the time period to file a lawsuit and is the same for wrongful death and survival actions. The statute of limitations is two years from the date of the deceased person’s death. A lawsuit must be filed within this time period or the right to file an action is waived.

Have you lost a loved one due to negligence? The experienced wrongful death attorneys at Parker Law Firm are here to explain your legal options and to take over the burden of fighting for the compensation you deserve. Call our office, or start an online chat to schedule your Complimentary Strategy Session.