Under the Wrongful Death Act, beneficiaries are able to recover personally for the damages they incur as a result of the loss of their loved one. In contrast, a suit brought under the Survival Statute is for the actual injuries sustained by the deceased.
Texas law states that an action for wrongful death may be brought "for damages arising from an injury that causes an individual's death if the injury was caused by the person's … wrongful act, neglect, carelessness, unskillfulness or default." See TEX. CIV. PRAC. & REM. CODE ANN. §71.002.
Under the statute, only the decedent's surviving spouse, parents, or children can bring the wrongful death suit. Therefore, in Texas, brothers and sisters of the deceased are without standing to bring the suit. Adult children may file wrongful death claims in regard to the death of a parent. Further, an adopted child may also file a wrongful death claim for the death of an adoptive parent, and similarly, the adoptive parents may file a claim if their adopted child suffers an untimely death. In order for a spouse to bring suit, they must be a legal spouse at the time of death and not divorced from the decedent.
The Texas wrongful death statute also states that if the decedent's surviving spouse, child, or parents do not file a wrongful death claim within three months of the decedent's date of death, the personal representative or executor of the decedent's estate may file the claim instead so long as a surviving family member does not specifically requests that the wrongful death claim not be filed.
A wrongful death claim provides compensation for the decedent's spouse, parents and children for losses they sustained as a result of the decedent's injury and death. Recoverable damages for a wrongful death claim include:
- Lost earning capacity of the decedent
- Lost care, maintenance, services, support, advice, and counsel the deceased would have provided his or her surviving family members;
- Mental and emotional anguish, pain, and suffering; lost love, companionship, comfort, and society; and
- Loss of inheritance.
If the facts and circumstances warrant, exemplary or punitive damages are available. When damages are awarded, they are divided among the surviving family members in proportion to the injury they suffered as a result of the untimely death. These proportions are determined by the court.
It is important to note that there is a two year statute of limitations for a wrongful death claim in Texas requiring that a wrongful death lawsuit be filed within two years of the deceased person's death absent any exceptions that are applicable.
The Texas Survival Statute allows an estate, heirs or legal representative to bring a survival action. The survival statute simply allows recovery for personal injuries held by the victim at the time of his death to be enforced by his heirs or personal representatives of his estate. Thus, damages such as lost wages, medical bills, property damage, funeral expenses and the like are available under this statute and the recovery will be given as part of the deceased's estate.
In order to recover for the physical pain and mental anguish suffered by the injured person prior to his death, it must be established by competent evidence that the decedent was conscious and actually experienced the physical pain and mental anguish for which recovery is sought. There can be no recovery by the estate for conscious pain and suffering if the decedent was instantly killed or lost consciousness immediately. Evidence that the decedent was conscious and actually experienced pain may be provided by expert testimony, eye witnesses, or may be inferred from the circumstances surrounding the death.
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