Wrongful death in Texas.

Two parallel statutes: Wrongful Death + Survival

Texas death cases involve two separate causes of action that are typically filed together:

1. Wrongful Death Statute — CPRC §§ 71.001-71.012

Compensates surviving family members for their own losses caused by the death — what they lost when their loved one died.

2. Survival Action — CPRC § 71.021

Compensates the decedent's estate for damages the decedent themselves could have recovered if they'd survived — pain and suffering before death, medical bills, lost earnings between injury and death.

Different plaintiffs. Different damages. Different distributions of recovery. Usually pursued in the same lawsuit by overlapping family members.

Who can file a Wrongful Death claim

Under Tex. CPRC § 71.004, only four categories of plaintiffs can bring a wrongful death claim in Texas:

1. Surviving spouse
2. Surviving children (biological and legally adopted)
3. Surviving parents
4. The executor or administrator of the estate (if no statutory beneficiary brings the claim within 3 months)

What's notably not on the list:

• Siblings (regardless of how close)
• Stepchildren (unless legally adopted)
• Grandchildren
• Grandparents
• Unmarried partners (regardless of relationship duration)
• Friends or godparents

This is different from New Mexico, which uses a personal-representative-only structure with broader statutory beneficiaries. In Texas, the family member files directly — no probate appointment needed for the wrongful death case (though one is needed for the survival action).

Damages in Texas wrongful death

The damages available to wrongful death plaintiffs are specifically defined by statute and case law. Each individual plaintiff has their own claim for their own damages.

Pecuniary loss

The financial contribution the decedent would have made to the plaintiff if they'd lived — wages, services, gifts, financial support, advice, and counsel.

Mental anguish

The emotional distress the plaintiff has suffered (and will suffer) because of the death.

Loss of companionship and society

The positive aspects of the relationship the plaintiff has lost — love, comfort, attention, presence in daily life.

Loss of consortium

For surviving spouses — loss of the marital relationship, including emotional, sexual, and household-services components.

Loss of inheritance

The value of what the plaintiff would likely have inherited from the decedent — including the decedent's accumulated savings, real estate, and assets that won't accumulate now.

Punitive damages

If the death was caused by gross negligence, willful conduct, or felony-level recklessness, exemplary damages may be available under CPRC § 41.008. Read about TX punitive damage caps.

The Survival Action

Separately from wrongful death claims of the family, the decedent's estate has its own claim under CPRC § 71.021 — the Survival Statute.

What this means: the personal injury claim the decedent had — for their own pain and suffering, medical bills, lost wages between injury and death — survives the death and can be prosecuted by the estate.

Recoverable survival damages:

• Conscious pain and suffering between injury and death
• Mental anguish suffered by the decedent
• Medical and funeral expenses
• Lost wages between injury and death
• Punitive damages (in appropriate cases)

Survival action damages go to the estate, which means they pass through probate and ultimately to whoever inherits under the will (or under intestacy if no will). This can differ significantly from who recovers under wrongful death — and creates planning opportunities and conflicts depending on the family structure.

The 2-year statute of limitations

Both the wrongful death claim and the survival action have a 2-year statute of limitations.

• Wrongful death: 2 years from the date of death (CPRC § 16.003(b))
• Survival action: 2 years from the date of death for the survival action (or 2 years from the date of injury if the decedent didn't die — but typically the survival action runs from death)

An important nuance: if the injury and death occurred on different dates (the person was injured but lingered before dying), the wrongful death clock starts at death. The underlying personal injury claim that the decedent could have brought during the survival period rolls into the survival action and runs from death.

If the defendant is a governmental entity, the TTCA 6-month notice rule still applies — measured from the date of incident, not death. See our statute of limitations deep-dive.

How Texas differs from New Mexico

For families in border regions where the choice of which state to file may matter:

• Statute of limitations. TX: 2 years from death. NM: 3 years from death.
• Who files. TX: surviving spouse/children/parents directly. NM: personal representative only.
• Damages categories. Both states allow pecuniary, mental anguish, companionship, consortium, and inheritance. NM uniquely has "value of life" damages separately.
• Punitive damages. TX caps under § 41.008. NM has no statutory cap on punitive damages.
• Comparative fault. TX: modified — barred at 51%. NM: pure — recover at any percentage.
• Government cases. TX: 6-month TTCA notice. NM: 90-day NMTCA notice.

In cases where the incident occurred near or across the state line, an attorney licensed in both states can evaluate which forum offers the best outcome for the family.

Settlement structures in wrongful death cases

Once a wrongful death case settles or wins at trial, the proceeds get distributed among the statutory plaintiffs. Each plaintiff has their own claim, so each has their own portion of the recovery — though in practice, most cases settle for a single lump sum that gets allocated among the family.

Common allocation methods:

• Negotiated allocation among family members — they decide together how to divide
• Court-approved allocation — required when minors are involved
• Structured settlements — particularly common with minor children, where proceeds pay out over time rather than as a single lump sum

For survival action proceeds, the analysis is different — those flow into the estate and pass through probate. The will controls; if there's no will, the intestacy statutes do.

Coordinating wrongful death recovery (to family members directly) and survival action recovery (to the estate) is a critical part of effective wrongful death case planning. Done poorly, family conflicts can derail the case or leave money on the table. Done well, the family ends up with maximum recovery distributed in a way that reflects their actual needs and relationships.