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.
Texas’s wrongful death statute is specific about who has legal standing to bring a claim. Under Texas Civil Practice and Remedies Code § 71.004, only the following parties may file a wrongful death lawsuit: the surviving spouse, surviving children (including adult children), and surviving parents of the deceased. Siblings, grandparents, and other relatives do not have standing under the Texas wrongful death statute — though they may have rights under a survival action.
If none of the qualifying family members files a wrongful death suit within three months of the death, the executor or administrator of the deceased’s estate may file on behalf of the estate — unless the family members affirmatively request that the estate not bring the claim.
It is important to understand the difference between a wrongful death claim and a survival claim. A wrongful death claim compensates surviving family members for their own losses: grief, lost financial support, loss of companionship, and funeral expenses. A survival claim, by contrast, is the deceased person’s own claim — whatever personal injury lawsuit they could have filed had they lived — and it is brought by the estate. Both can often be pursued simultaneously, and doing so maximizes total recovery.
Damages available in a Texas wrongful death claim include: loss of financial support the deceased would have provided, loss of companionship and consortium (for spouses and parents), mental anguish suffered by surviving family members, loss of inheritance (the wealth the deceased would have accumulated), and funeral and burial expenses. Punitive damages may also be available in cases involving gross negligence or intentional misconduct.
Texas’s wrongful death statute of limitations is two years from the date of death — but preserving evidence, obtaining autopsy and accident reports, and building the case properly takes time. Cap City Injury Attorneys works compassionately but aggressively with grieving families to pursue full justice under Texas law.
Austin Wrongful Death Case: Who Sues and What They Recover
A 52-year-old Austin father of three was killed when a distracted driver ran a red light on Slaughter Lane and struck his vehicle broadside. He left behind a wife of 26 years, two adult children, and a teenage son still in high school. He was the family’s primary earner, bringing in $95,000 per year as a project manager.
His wife filed a wrongful death lawsuit against the at-fault driver and their insurer. His estate simultaneously filed a survival action for the pain and suffering he experienced in the moments before death and for the ambulance and emergency room costs incurred. Cap City Injury Attorneys presented a financial expert who calculated 13 years of remaining earning capacity at $1.24 million in present value, plus $300,000 for loss of companionship and mental anguish across the three surviving children. The case settled for $1.1 million — paid from a combination of the at-fault driver’s liability policy and an underinsured motorist claim against the family’s own policy. Understanding who can sue and what they can claim is the first step toward justice after a preventable death.
Can Siblings or Grandparents File a Wrongful Death Lawsuit in Texas?
No. Texas’s wrongful death statute (§71.004) limits eligible plaintiffs to spouses, children, and parents of the deceased. Siblings, grandparents, and other relatives — even if they were financially dependent on the deceased — cannot file a wrongful death lawsuit. However, they may be beneficiaries of the estate’s survival action if the deceased’s will names them as heirs.
How Long Does a Wrongful Death Lawsuit Take in Texas?
Most wrongful death cases settle within 12–24 months. Cases that go to trial can take 2–4 years. Factors affecting timeline include: complexity of liability, number of defendants, availability of insurance coverage, and whether the case involves disputed causation. Wrongful death cases involving trucking companies or municipalities can take longer due to more parties and more complex discovery.
For a free case review, call Cap City Injury Attorneys’ wrongful death attorney 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
Q: Who can file a wrongful death lawsuit in Texas?
A: Under Texas law, only the surviving spouse, children (including adult children), and parents of the deceased may file a wrongful death claim. Siblings and other relatives do not have standing.
Q: Can an adult child of the deceased sue for wrongful death in Texas?
A: Yes. Texas law explicitly includes adult children among those who may bring a wrongful death claim, regardless of whether they were financially dependent on the deceased.
Q: What is the difference between a wrongful death claim and a survival claim in Texas?
A: A wrongful death claim compensates the surviving family for their own losses. A survival claim is the deceased’s own personal injury claim, pursued by the estate. Both can often be filed simultaneously.
Q: What damages can be recovered in a Texas wrongful death lawsuit?
A: Damages may include lost financial support, loss of companionship and consortium, mental anguish, funeral and burial costs, loss of inheritance, and medical expenses incurred before death.
Q: How long do I have to file a wrongful death claim in Texas?
A: Two years from the date of death. Missing this deadline will almost certainly bar your claim forever. Contact an attorney as soon as you are ready to begin the process.
Q: What if multiple family members want to sue — do they file separately?
A: Typically they file a single lawsuit together. Each eligible family member can be a separate plaintiff in the same action, with damages allocated among them by the jury or in the settlement.
Q: Can I file a wrongful death claim if the deceased was partially at fault for the accident?
A: Yes, but Texas’s comparative fault rules apply. Recovery is reduced by the deceased’s percentage of fault, and if they were more than 50% at fault, recovery may be barred.
Q: What if the person responsible for my loved one’s death was also criminally charged?
A: A criminal conviction is not required to bring a civil wrongful death claim, and the civil and criminal cases are separate. A criminal conviction, however, can be powerful evidence in your civil case.
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.
Matthew Mandelker is the Founder, CEO, and Managing Attorney of Cap City Injury Attorneys, bringing over 15 years of personal injury law experience in Texas to every case he handles. A graduate of St. Mary’s University School of Law, Matthew has served as a partner, sole practitioner, and associate at some of the largest personal injury firms in Texas, giving him a unique perspective on what great legal representation looks like. He founded Cap City Injury Attorneys to combine the sophistication of a major firm with the personalized service of a boutique practice, ensuring every client receives direct attorney access, honest communication, and relentless advocacy. When he is not fighting for his clients, Matthew can be found on Lake Travis or spending time with his 10-year-old twins, and that same dedication to family is the foundation of everything he does at the firm.