Wrongful Death Claims in Texas
How the claim works, who can bring it, and what it can recover.
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A wrongful death claim is the civil case a family brings when someone dies because another person or company was negligent. It is filed under Chapter 71 of the Texas Civil Practice and Remedies Code, and it is entirely separate from any criminal charge the at-fault party may face. A prosecutor can put someone in prison. Only a civil claim can provide for the family that person left behind.
This page walks through how a Texas wrongful death claim actually works: what makes a claim valid, who is allowed to bring it, how it gets filed, what it can recover, how the money is divided, and how long the process takes. If you want to talk about your family’s situation instead, our Texas wrongful death lawyers offer a free and confidential consultation.
Meet your wrongful death attorneys.
- Former prosecutor & former insurance-defense attorney
- Multiple seven-figure recoveries in trucking and industrial fatalities
- Views wrongful death cases as public service for families who can no longer speak for themselves
- Lawdragon 500 Leading Plaintiff Consumer Lawyers (2024, 2025)
- Former Assistant DA, Tarrant County
- Previously represented insurance companies
- Catastrophic injury & wrongful death focus
- Dual perspective: builds cases and knows how insurers attack them
- Leads the firm’s personal injury practice
- Super Lawyers Rising Star (2025)
- Fort Worth Inc. 40 Under 40 (2025)
- Fellow, Texas Bar Foundation (2024)
- Founder of Varghese Summersett
- Former insurance adjuster before law school
- Tried 100+ cases before Texas juries
- Named a Super Lawyer for over a decade
- Texas Tech University School of Law
- Outstanding Brief Award, Duberstein National Moot Court
- Certified Mediator
- Began at the firm in client relations
What Qualifies as a Wrongful Death Claim in Texas?
A wrongful death claim requires the same elements as any personal injury case, with one addition: the injured person died. Put simply, if your loved one could have brought an injury claim had they survived, your family can generally bring a wrongful death claim now that they did not.
Three elements have to be present.
1. A Duty of Care
Someone must have owed your loved one a duty to act with reasonable care. This is usually the easiest element to establish. Drivers owe other people on the road a duty to drive safely. Property owners owe visitors a duty to keep the premises reasonably safe. Employers, manufacturers, trucking companies, and doctors all carry duties defined by law or industry standard.
2. A Violation of That Duty
Next, that person or company has to have breached the duty. Proof might be a driver who was texting, intoxicated, or speeding. It might be a trucking company that put an unqualified driver on the road, a property owner who ignored a known hazard, or a manufacturer that shipped a defective part. Establishing the breach is where most of the investigation happens.
3. The Violation Caused the Death
Breaching a duty is not enough on its own. The breach has to be what caused the death. People violate duties of care constantly without consequence. Liability attaches when that violation is what took your loved one’s life, and proving that link often requires medical records, accident reconstruction, or expert testimony.
Why This Is Harder Than It Looks
Families often assume a case is obvious, especially when the other side was clearly at fault. Insurers do not treat it that way. Wrongful death exposure is large enough that carriers routinely dispute causation, argue the deceased was partly responsible, or question whether a duty existed at all. Understanding the three elements helps, but it does not replace having someone build the proof. We review these cases at no charge and will tell you honestly whether we think you have a claim.
How Do You File a Wrongful Death Claim in Texas?
Filing is a sequence, not a single event. Here is how it typically unfolds.
Step 1: Confirm Who Has the Right to Bring It
Under Section 71.004, only the surviving spouse, children, and parents of the person who died may bring a Texas wrongful death claim. Siblings cannot, and neither can grandparents, even when they were the closest person to the deceased. Adopted children and adoptive parents are included. One eligible family member can file on behalf of all of them, or they can file together.
If no eligible family member files within three months of the death, the executor or administrator of the estate may file instead, unless the family specifically asks that no suit be brought.
Step 2: Preserve the Evidence Before It Disappears
This is the step families most often miss, and it is the one with the shortest fuse. Trucking companies are only required to retain certain logs and electronic data for limited periods. Vehicles get repaired or scrapped. Surveillance footage is overwritten, often within days. Sending spoliation and preservation letters early is frequently what determines whether a claim can be proven at all.
Step 3: Understand the Two Year Deadline and Its Exceptions
Texas generally gives families two years from the date of death to file a wrongful death lawsuit. That window closes faster than families expect, because the first months are consumed by the funeral, the estate, and the insurance companies. A handful of situations can change the deadline, including:
- A claimant who is a minor
- Certain claims involving sexual abuse
- Claims involving asbestos or silica exposure
- Injuries or illnesses that were not reasonably discoverable at the time
- Claims governed by maritime law
- Claims against a governmental entity, which carry much shorter notice deadlines, sometimes as short as six months
Never assume the deadline has passed, and never assume you have the full two years. Both mistakes cost families their claims.
Step 4: Make the Insurance Claim, Then File Suit If Needed
Most wrongful death claims begin as a claim against an insurance policy rather than a lawsuit. Your lawyer assembles the proof of liability and the full picture of your family’s loss, then presents it to the carrier. If the carrier makes a fair offer, the case can resolve without a courtroom. If it does not, or if the at-fault party has no coverage at all, the next step is filing a petition in the appropriate Texas district court and pursuing the claim through discovery, mediation, and if necessary trial.
Wrongful Death Claim vs. Survival Action
Texas actually allows two separate claims after a death, and families are frequently entitled to both. The wrongful death claim belongs to the family and compensates them for their own losses. The survival action belongs to the estate and recovers what your loved one personally could have claimed had they lived. Filing only one leaves money on the table.
| Wrongful Death Claim | Survival Action | |
|---|---|---|
| Statute | CPRC Section 71.002 | CPRC Section 71.021 |
| Who brings it | Surviving spouse, children, parents | The estate, through its personal representative |
| What it compensates | The family’s losses: lost financial support, lost companionship, mental anguish | The decedent’s own losses: pain and suffering before death, medical bills, lost wages before death, funeral expenses |
| Where the money goes | Directly to the eligible family members | Into the estate, then distributed under the will or Texas intestacy law |
| Reachable by creditors | Generally no | Generally yes, as an estate asset |
That last row matters more than families expect. Because survival action proceeds flow through the estate, they can be exposed to the deceased person’s creditors in a way wrongful death proceeds usually are not. How a settlement is allocated between the two claims can meaningfully change what your family actually keeps.
Who Receives the Money, and How Are Proceeds Divided?
Wrongful death proceeds are not split evenly by default, and they do not simply pass through the will. Texas law directs that the recovery be divided among the eligible family members in proportion to the injury each of them suffered from the death. A jury can make that apportionment, or the family can agree to it as part of a settlement.
In practice, that means a surviving spouse and minor children who depended on the deceased for daily support and income usually receive more than an adult child who lived independently. It is a fact question, not a formula, and it is one of the reasons wrongful death settlements involving several family members need careful handling. When minors are involved, a Texas court typically must approve the settlement and may require the funds be placed in a structured arrangement or court registry until the child turns eighteen.
What Damages Are Available in a Wrongful Death Claim?
Texas recognizes three categories of wrongful death damages.
Economic Damages
These are the calculable financial losses: the income and benefits your loved one would have earned over their working life, the value of household services they provided, lost inheritance, medical expenses incurred before death, and funeral and burial costs. Economic damages are usually established through pay records, tax returns, and testimony from an economist who projects what the family lost over time.
Non-Economic Damages
These compensate what cannot be invoiced: mental anguish, loss of companionship and society, loss of the care, maintenance, advice, and counsel the deceased would have provided. For most families these are the largest part of the claim. Texas does not cap non-economic damages in ordinary wrongful death cases. Medical malpractice claims are the exception and carry statutory caps.
Exemplary Damages
Also called punitive damages, these are not meant to compensate your family. They exist to punish and to deter. In Texas they are available in a death case where the death was caused by a willful act or omission or by gross negligence. They are comparatively rare and demand a high standard of proof, but in cases involving conduct like a company knowingly ignoring a safety requirement, they can be a significant part of the recovery.
How Long Does a Wrongful Death Claim Take?
Families understandably want a timeline, and the honest answer is that it depends on whether the case settles or gets tried. A claim with clear liability and an insurer willing to negotiate can resolve in several months. A case with disputed liability, multiple defendants, or a carrier determined to litigate can run two years or longer.
The phases generally look like this:
- Investigation. Evidence preservation, records, scene work, and expert review. Typically the first several weeks to a few months.
- Presentation and negotiation. The claim is packaged and presented to the insurer, followed by negotiation. Weeks to months.
- Filing and discovery. If negotiation fails, suit is filed and both sides exchange evidence and take depositions. Often the longest phase.
- Mediation. Most Texas courts require it, and most cases resolve here.
- Trial. If no fair resolution is reached, the case is presented to a jury.
We prepare every wrongful death claim as though it will be tried, because a case built for trial is the one that draws a serious settlement offer.
Real Results in Wrongful Death Claims
A sample of outcomes our team has secured for grieving families across Texas.
Loss on a Dark Highway
A family was left without a husband and father after an 18-wheeler backed blindly across a dark highway with none of the required lighting. Criminal charges against the driver could punish him, but they could not support the people he left behind, so we built the civil case that would. We turned down the trucking company’s early offer and recovered one of the top ten reported settlements in Texas that year for the family.
Result: the family received $2,317,515.82.
A Mother of Four, Killed at Work
A mother of four was killed on the job when a warehouse aisle went dark because its motion sensor lights could not reach behind a shelf. The company tried to blame the forklift she was driving. Our own inspection cleared the equipment, and only after we forced the case into arbitration did discovery expose the lighting failure the company had stayed silent about. The result was a seven figure recovery for her family.
Result: the family received $1,035,780.80.
Past results do not guarantee future outcomes. Every case depends on its own facts, and no particular outcome can be promised.
Frequently Asked Questions About Wrongful Death Claims
Do I have to open an estate to bring a wrongful death claim?
Not for the wrongful death claim itself. The surviving spouse, children, or parents can bring that claim directly, without probate. A survival action is different, because it belongs to the estate and requires a personal representative. Since families are often entitled to both claims, opening an estate is frequently worth doing even when it is not strictly required.
Can several family members each file their own claim?
Texas treats the wrongful death claim as a single action rather than separate suits. One eligible family member can file for the benefit of all of them, or they can join together. If one family member files and others do not participate, those others can still be bound by the outcome, which is why every eligible person should be identified at the outset.
What if my loved one was partly at fault?
A claim can still succeed. Texas uses proportionate responsibility, meaning the recovery is reduced by the percentage of fault assigned to the person who died. If they are found more than 50 percent responsible, the claim is barred. Insurers know this rule and routinely try to push blame onto the deceased, which is exactly why the causation evidence matters so much.
Is a wrongful death settlement taxable?
Compensatory damages for a physical injury or death are generally not treated as taxable income under federal law, while punitive damages and any interest generally are. Allocation within a settlement can affect this. We work with families and their tax professionals so the structure of a settlement is understood before it is signed, and we recommend confirming your own situation with a CPA or tax attorney.
Can we bring a claim if there is already a criminal case?
Yes. The two are independent. A criminal prosecution punishes the offender and does not compensate your family. A civil wrongful death claim can proceed alongside it, and it uses a lower burden of proof, which means a claim can succeed even where a criminal case does not result in a conviction. A conviction, when there is one, can strengthen the civil claim considerably.
What does it cost to bring a wrongful death claim?
We handle wrongful death claims on a contingency fee, so there is no upfront cost and no fee unless we recover money for your family. Case expenses are advanced by the firm. The consultation is free and confidential.
Explore Related Wrongful Death Resources
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Varghese Summersett — Fort Worth
One City Place Building, 300 Throckmorton Street, Suite 700, Fort Worth, TX 76102
Wrongful death claims are civil matters, separate from any criminal case the at-fault party may face. We handle the civil claim from the first phone call through settlement or trial.