When someone dies in an accident, only certain people can sue to recover compensation. When these lawsuits are filed, both the victim’s estate and the victim’s heirs usually have separate rights to recovery.
When someone dies in an accident that they could have sued for if they lived, their family and estate are allowed to sue. The family’s lawsuit can be filed by the spouse, children, or parents, and one person can file a lawsuit to represent all of them. The estate’s lawsuit is filed by the executor.
For a free case review, call Cap City Injury Attorneys’ Texas wrongful death lawyers at (512) 612-3110.
Wrongful Death Lawsuit vs. Survival Actions
When someone dies, two lawsuits can be filed:
Wrongful Death Lawsuit
This lawsuit is filed by the family to recover damages that their loved one’s death caused them. This allows them to recover for lost earnings, lost companionship, and other effects of the death.
Survival Action
If the accident victim had survived, they would have been entitled to a lawsuit for pain and suffering, lost wages during their hospitalization, and medical bills. This lawsuit survives even if they die, and their estate can file it in their place and pass the damages on to their heirs.
Who Can File a Wrongful Death Lawsuit
Texas Civ. Prac. & Rem. Code § 71.004 lays out the rules for who can bring a wrongful death lawsuit:
Family Members
This lawsuit can only be filed by the victim’s…
- Spouse
- Children or
This means that unmarried partners, siblings, and other close friends/family cannot file the lawsuit – but it doesn’t necessarily stop them from getting anything.
One Can File for All
Only one family member needs to file the lawsuit; the rest can still get their share of the damages even if they do not actively file the lawsuit.
Executor as Backup
If no one who can file the lawsuit does so within 3 months, the executor of the victim’s estate can file the lawsuit on their behalf. The executor doesn’t benefit from this lawsuit, and the money still goes only to the spouse, children, or parents.
Damages Available
In a wrongful death lawsuit, our Texas wrongful death lawyers can help spouses, children, and parents recover any damages the family faces because of the loss:
- Funeral/burial costs
- Lost financial support
- Lost advice and support
- Lost companionship
- Grief/mental anguish
- Lost household services
- And more.
Lawsuit by the Estate – “Survival Action”
On top of the wrongful death lawsuit, the victim’s estate can file to recover damages the victim faced before dying. This essentially puts the estate in the victim’s shoes and allows them to continue on with the lawsuit the victim would have been able to file if they survived the accident.
Damages Available
This usually includes things like the pre-death…
- Medical expenses
- Lost wages
- Pain and suffering.
Who Files?
This lawsuit is filed by the executor of the estate. The estate is the collected total of the victim’s assets and property that they left behind. An estate is managed by the “executor” or “administrator,” who is entitled to manage the deceased’s affairs, distribute the property to their heirs, and actually file the lawsuit in court.
This person is usually appointed in the victim’s will (if they had one) or else the court appoints them. That often means this is a person close to the deceased, such as a spouse, parent, sibling, or friend.
Who Benefits?
The money from this lawsuit is paid to the estate, not the executor. That means it gets distributed…
- Under the victim’s will, if they had one, or
- Under the Texas intestacy statute if they died intestate (without a will).
If unmarried partners, friends, siblings, or other people are listed in the victim’s will, they can recover some of these damages, as per the terms of the will.
FAQs about Wrongful Death Claims in Texas
Who Gets Damages from a Wrongful Death Lawsuit?
The wrongful death lawsuit pays damages to the spouse, children, or parents of the victim. If their estate files a survival action, those damages pay into the estate and get distributed to whoever the will names, which might mean people beyond these family members.
Can Unmarried Partners Collect Damages?
The law only allows recovery by spouses, not unmarried dating partners. However, a survival action can recover damages that go into the estate, and then to whoever the victim’s will names as heirs. That means an unmarried partner listed in their will might still recover some damages this way.
Can Adopted Children and Dependents Recover?
Adopted children legally qualify as “children” and should be able to file a lawsuit the same as a natural-born child would. However, other dependents – such as a disabled sibling or niece/nephew or a grandparent in the victim’s care – do not get this right.
Can Other Family Members Recover?
Although other family members cannot file a wrongful death lawsuit or benefit from it, there may be damages that are paid into the victim’s estate that would get distributed to them under the victim’s will.
Who is the Executor or Administrator of the Estate?
If someone dies with a will, their will names the executor or administrator of the estate. This person manages their finances, puts together the estate, and distributes it to their named heirs.
If someone dies without a will, the court appoints an executor, usually from close family.
Does the Executor Benefit from Wrongful Death Lawsuits?
When an administrator files a lawsuit, they do so to recover on behalf of the heirs or estate, not for themselves. The executor can file a wrongful death lawsuit, but it pays damages to the spouse, children, or family. They also file the survival action, but that pays damages to the estate itself.
If the executor happens to be one of these people, they will get the damages because of that relationship, not because they were the executor.
What Counts as “Wrongful Death”?
Usually, wrongful death involves some kind of accident or fatal injury that the victim would have been able to sue for if they had survived, such as…
- Car accidents
- Deadly head injuries from slip and falls or property collapses
- Building fires
- Deadly product defects
- Medical malpractice
- Work accidents.
Call Our Wrongful Death Lawyers in Texas Today
If you lost a loved one in an accident, call Cap City Injury Attorneys’ Austin personal injury lawyers at (512) 612-3110 for a free case evaluation.