In Texas, a wrongful death claim after a fatal car accident may be brought by the surviving spouse, the children and the parents of the person who died, and any one of them may sue for the whole group. If nobody has started within three calendar months, the executor or administrator must file unless all of them ask otherwise.
The short version
- Three groups hold the wrongful death claim: the surviving spouse, children and parents (Civil Practice and Remedies Code § 71.004(a)).
- One can sue for all. Any of them may sue on behalf of the whole group.
- The estate is the backstop. After three calendar months without a filing, the executor or administrator must bring the case unless every entitled person asks them not to.
- The estate also holds a second claim, the injured person’s own, which survives death under § 71.021.
- The clock is two years from the death (§ 16.003(b)); confirm your deadline with an attorney early.
What kind of claim follows a fatal car accident in Texas?
Two claims can come out of one death. A wrongful death action belongs to the surviving family and answers their loss. A survival action belongs to the estate and carries on the claim the injured person would have had. They are filed by different people, so it helps to separate them.
Chapter 71 of the Civil Practice and Remedies Code is titled “Wrongful Death; Survival; Injuries Occurring Out of State.” Section 71.002(a) allows “an action for actual damages arising from an injury that causes an individual’s death” where liability exists, and subsection (b) reaches a person whose “wrongful act, neglect, carelessness, unskillfulness, or default” caused the injury. The text is on the Legislature’s site: Civil Practice and Remedies Code chapter 71, read on 16 October 2026.
For a family weighing a fatal car accident case in Houston, our wrongful death page describes the whole process. This article stays on one question: who may file, and in what order.
Who may bring a wrongful death claim in Texas?
The surviving spouse, the children and the parents of the person who died. Section 71.004(a) makes the action “for the exclusive benefit” of those three groups, and subsection (b) says they may bring it together or one or more may bring it on behalf of the rest.
The list is closed, and a family does not need unanimous agreement to start: one spouse, child or parent can file for everyone entitled. The text we read does not say how adopted children, stepchildren or children born outside marriage are treated, so those questions go to an attorney rather than to guesswork.
| Person or group | Role the statute gives | Section | Confirm with counsel |
|---|---|---|---|
| Surviving spouse, children, parents | May bring the wrongful death action, for their exclusive benefit; one or more may sue for all. | § 71.004(a), (b) | How adopted, step and non-marital children are treated. |
| Executor or administrator | Must bring it if no family member has begun it within three calendar months, unless all entitled persons ask otherwise. | § 71.004(c) | Whether anyone has been appointed yet. |
| Heirs, legal representatives, estate | Hold the survival action, the injured person’s own claim. | § 71.021(a), (b) | Who the heirs are under the Estates Code. |
| Siblings, grandparents, other relatives | Not named among those who may bring or benefit from the wrongful death action. | § 71.004(a) | Whether they are heirs of the estate. |
| All of the above | Two years from the death to sue in an action for injury resulting in death. | § 16.003(b) | Whether a listed exception applies. |
Sources, all opened on 16 October 2026 at statutes.capitol.texas.gov: Civ. Prac. & Rem. Code ch. 71 and ch. 16.
The rule is the same whatever caused the death. Families dealing with an intoxicated driver can read about drunk driving victims and dram shop laws, and those whose loved one was struck by a driver who left can read about hit-and-run claims; see also the steps after a Houston hit-and-run.
What happens if the family does not file within three months?
The executor or administrator must bring the case. Section 71.004(c) says that when no entitled person has started the case “within three calendar months after the death,” the executor or administrator “shall bring and prosecute the action,” unless all those individuals ask them not to.
The exception needs every entitled person, not most of them. Section 71.004(c) does not say the three months cut off any family member’s right to sue; it sets when the personal representative must step in.
If no executor or administrator has been appointed, the estate may need a court filing before anyone can act for it. That is a probate step separate from the injury case, and it is one reason to speak with a lawyer in the first weeks. The paperwork that helps is covered in our case-evaluation checklist.
In Harris County those appointments are made by the county’s statutory probate courts: their jurisdiction page lists determination of heirship and appointment of executors and administrators among the matters they hear, with Courts 1 through 4 at 201 Caroline and Court 5 at 1115 Congress Street (Harris County Probate Courts, Local Rules & Jurisdiction). See also our page on fatal car accident claims and the discussion of family members’ own losses after an injury. After a crash, what to do after a car accident, auto accident claims and the first steps for an auto accident are covered on their own pages.
Can siblings, grandparents or other relatives file?
Not under the wrongful death statute as written. Section 71.004(a) lists only the surviving spouse, children and parents, so siblings, grandparents and other relatives are not named among those who may bring or benefit from the action. A sibling may still matter as an heir of the estate.
The Estates Code, not the wrongful death statute, decides who inherits without a will. For a person who leaves no spouse, Estates Code § 201.001 passes the estate to children and their descendants first, then to the father and mother; siblings and their descendants share with a single surviving parent, and take everything when neither parent survives (§ 201.001(b)–(e), read 16 October 2026). Section 201.002 governs when there is a surviving spouse.
So a brother or sister who cannot join the wrongful death action may be an heir who benefits from the estate’s survival claim. These are two routes with different rules, and which fits depends on who survived, whether there was a will and who administers the estate. If you are a grandparent or fiance in that position, ask an attorney about the estate route instead of looking for a way around the statute’s wording.
Who files the survival action, and who receives it?
It is the estate side of the case: the statute says it survives to and in favor of the heirs, legal representatives and estate of the injured person. Section 71.021(a) provides that the claim “does not abate because of the death of the injured person,” so an executor or administrator typically pursues it.
The survival action is the injured person’s own claim continuing. It also survives the at-fault person’s death: § 71.021(b) says it “survives against the liable person and the person’s legal representatives,” and, for the wrongful death action, § 71.008(a) lets the executor or administrator of a deceased defendant’s estate be made a defendant.
Someone must have authority to act for the estate, usually an executor named in a will or an administrator appointed by a Texas court. Which deadline governs a survival action is a question for counsel, since § 16.003(a) sets two years for personal injury suits generally and § 16.003(b) sets two years from death for actions for injury resulting in death. The two claims are often filed in one lawsuit; our article on the categories of car accident damages sorts out what each can include.
How is the money divided among the family?
A jury sets the shares. Section 71.010 says the jury may award damages “in an amount proportionate to the injury resulting from the death,” divided “in shares as found by the jury in its verdict, among the individuals who are entitled to recover and who are alive at that time.”
Nothing in that section makes the shares equal. Two neighbouring provisions matter too: wrongful death damages “are not subject to the debts of the deceased” (§ 71.011), and where death is caused by “the wilful act or omission or gross negligence of the defendant, exemplary as well as actual damages may be recovered” (§ 71.009). For exemplary damages, § 41.003 sets a heightened standard of proof and requires a unanimous jury (read 16 October 2026).
What a claim is worth is a separate question from who may file. See our guides to valuing a Houston car accident claim, to loss of consortium and to the car accident practice page.
What is the deadline, and who has to meet it?
Two years from the date of death. Section 16.003(b) sets a two-year period for suing in an action for injury resulting in death and fixes the start date at the death itself, which can be well after the crash if the person survived for a time. Exceptions exist.
The count runs from the death, not the crash. Section 16.003(a) refers to other sections (16.010, 16.0031 and 16.0045), so the statute acknowledges exceptions, and a claim against a public entity has its own notice rules; read our walk-through of filing deadlines and the timeline of a Texas injury case. Do not confuse the three months in § 71.004(c), which control when the personal representative must act, with this two-year deadline for the lawsuit itself.
Does the share of fault of the person who died matter?
It can. Texas’s proportionate responsibility chapter can cut a recovery, or bar it past a 50 percent share, and it counts a person seeking damages for another’s death as a claimant. How a court applies that to a family is for counsel.
In chapter 33 (read 16 October 2026), § 33.001 bars recovery once the claimant’s own share of responsibility passes 50 percent, and § 33.012(a) makes the court reduce the award by that share when it does not. Under § 33.011(1) the word “claimant” takes in the person who died as well as anyone who could seek damages for that death.
Read together, an insurer may argue that the person who died shared the blame and ask to cut the family’s recovery. That argument comes up in a pedestrian death or a motorcycle death; see how comparative negligence works. A commercial truck adds defendants and insurers (see who can be liable for a truck crash), which affects who pays, not who files; for the practice page see 18-wheeler accident claims.
What does a Houston family lawsuit after a fatal crash look like?
One reported example is an ABC13 story of 15 June 2021: a woman’s husband and daughter sued an ambulance company and its driver in Harris County, saying a November 2019 crash with a METRORail train led to her death in February 2020. These are the family’s allegations; the article reports no ruling.
ABC13 (KTRK) reported that Adriana Rodriguez and her father, Jose Rodriguez, sued Orion EMS and the ambulance driver. Per the article, Josefina Rodriguez, 66, was in the back of the ambulance when it struck a METRORail train at Fannin and Cambridge in the Texas Medical Center, and, per the article, had two brain surgeries over the following weeks and was dead by February 2020; the family believes the crash caused her death. Orion EMS and the driver did not respond to requests for comment. The report is on ABC13’s website, read on 16 October 2026.
The article does not say which statute the family used, so we draw no legal conclusion. It does show a spouse and a child filing together in a Houston court after a death that came months after the crash, the situation in which § 16.003(b) counts from the date of death.
A more recent ABC13 report, dated June 24, 2026, said a 76-year-old woman was killed when a Tesla driven by a Fort Bend County man went into a west Harris County home, and that her daughter and son-in-law filed suit the next business day against the driver and Tesla, alleging a product defect and failure to warn. The sheriff’s office told the station it had found no evidence of a mechanical malfunction, and Tesla’s executive disputed the claim. The article does not say in what capacity the plaintiffs sued, and the allegations are untested.
Who should a family talk to first?
An attorney who handles Texas wrongful death cases, early, before an insurer asks for a statement and before anyone decides who will serve as executor or administrator. Early contact also lets the family ask about deadlines, who may file, and what to keep, before documents are signed.
For the broader practice see personal injury representation in Houston; for fees see what an accident lawyer costs. A short written account of the crash, the date of death and the family members involved can go through the contact page.
Before any insurer call, read why to talk to an attorney before an adjuster and what to ask a Houston injury attorney. This article is general information about Texas statutes, not advice on your family’s situation.
Frequently asked questions
Who is allowed to file a wrongful death lawsuit in Texas?
The surviving spouse, children and parents of the person who died. Under § 71.004, one or more of them may sue for everyone entitled. If none has begun it within three calendar months, the executor or administrator must bring it unless all of them request otherwise.
Can a sibling sue for wrongful death in Texas?
Section 71.004(a) names the surviving spouse, children and parents and does not list siblings. A sibling may still be an heir of the estate under the Estates Code, which is a separate route that an attorney should review.
What do you need to know about wrongful death in Texas?
There are two linked claims: a wrongful death action for the spouse, children and parents, and a survival action for the estate. Suit is due within two years of the death under § 16.003(b), a jury divides any award among the entitled family members, and a fault finding against the person who died can reduce recovery.
How do wrongful death lawsuits work in Texas?
A family member or the estate’s representative sues the person or company said to have caused the death, and the case moves through investigation, filing, exchange of evidence and, if it does not settle, trial. A jury that awards damages divides them among the entitled individuals under § 71.010.
Does a wrongful death claim require a criminal conviction first?
No. Section 71.006 says an action under the subchapter “is not precluded because the death is caused by a felonious act or because there may be a criminal proceeding in relation to the felony.” The civil case and any criminal case are separate proceedings.
Are wrongful death damages used to pay the deceased person’s debts?
Not under the statute. Section 71.011 says damages recovered in a wrongful death action “are not subject to the debts of the deceased.” An attorney should review how the estate’s separate survival claim is treated.
Can the at-fault driver’s death stop a wrongful death case?
No. Under § 71.008, if the defendant dies while the action is pending or before it begins, the executor or administrator of the defendant’s estate may be made a defendant and the action prosecuted as though the defendant were alive.
About the authors
Sam A. Maida, Jr.
Owner and Managing Attorney
Sam A. Maida, Jr. has represented injured Texans in the greater Houston area since the firm opened in 1993.
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Bernard G. Johnson III
Litigation Managing Attorney
Bernard G. Johnson III is a board certified trial lawyer licensed in Texas since 1996 and a graduate of South Texas College of Law.