Houston Wrongful Death Lawyer

Only the surviving spouse, children and parents of the person who died. Section 71.004(a) states the action is for their exclusive benefit, and § 71.004(b) allows any one or more of them to bring it for the benefit of all. Siblings are not included, and nor are grandparents, however close the relationship was. Adopted children are within the statutory scheme. Where the family does not act, § 71.004(c) provides that if none of the entitled individuals has begun the action within three calendar months of the death, the executor or administrator of the estate must bring it unless all of them request that it not be brought.

The survival claim belongs to the person who died, not to the family. Section 71.021(a) provides that a cause of action for personal injury does not abate because of the death of the injured person, and subsection (b) provides that it survives to and in favour of the heirs, legal representatives and estate. So it is brought by the estate's representative, and any recovery passes through the estate and is distributed according to the will or the rules of intestacy — which means it can reach people who are not entitled to bring a wrongful death claim at all, and can be exposed to estate creditors.

They cover different losses, which is why both are usually brought together. The wrongful death claim compensates the survivors for their own loss — the financial support they would have received, and the relationship they have lost. The survival claim compensates what the person themselves experienced between the injury and death: their conscious pain and suffering, the medical expenses incurred in that period, and funeral expenses. Where death was instantaneous the survival claim may be small; where someone survived for days or weeks in intensive care it can be substantial, which is why the medical chronology matters.

That the death was caused by conduct for which someone is legally responsible. Section 71.002(b) frames it as liability where the injury was caused by a person's or their agent's or servant's wrongful act, neglect, carelessness, unskillfulness or default. In practice that is the same negligence analysis as any injury case, with the same apportionment rules — § 33.001 bars recovery entirely if the deceased's percentage of responsibility exceeded 50 percent, and reduces it proportionally below that. The difference is evidentiary: the most important witness cannot testify, so the physical and documentary evidence carries more weight.

The statute anticipates it. Because § 71.004(b) allows one or more of the entitled individuals to bring the action for the benefit of all, a single family member can proceed without unanimity, and the others remain beneficiaries of any recovery. Section 71.004(c) then provides the fallback: if nobody entitled has begun the action within three calendar months of the death, the executor or administrator must bring it unless all of the entitled individuals request otherwise. Allocation among beneficiaries is a separate question decided later, and it is one of the more common sources of friction in these cases.

Ordinarily Harris County where the death occurred here, with the civil district courts at the Harris County Civil Courthouse, 201 Caroline Street, Houston, TX 77002. A survival claim adds a probate dimension, because it is brought by the estate and therefore requires someone with authority to act for the estate — which may mean opening an administration if none exists. Coordinating the probate step with the two-year deadline is one of the practical reasons families are advised not to wait, since obtaining letters of administration is not instantaneous.

From everything that recorded the event and its aftermath. The crash or incident report, scene photographs and measurements, camera footage, the vehicles or equipment involved, and the event data recorders. Then the medical record, which documents both causation and the survival claim's conscious pain and suffering. Autopsy findings and the medical examiner's report. Employment and tax records establish the financial support element of the wrongful death claim. Much of this is perishable — vehicles are released and repaired, footage is overwritten — which is why preservation begins before the funeral is over, uncomfortable as that is.

From the date of death, not the date of the incident, under § 16.003(b). That distinction matters whenever someone survives for a period before dying — a person injured in March who dies in September gives the family until two years from September. There are also earlier deadlines that can apply: § 101.101 requires written notice to a governmental unit within six months if a City of Houston, Harris County, METRO or state vehicle or employee was involved. And § 71.004(c) creates its own three-month trigger for the executor or administrator's duty to act.

Earlier than feels natural, and this is the hardest advice to give. Nothing about the legal process helps a family in the first weeks, but the evidence does not wait: vehicles are released and repaired, camera footage rolls over, and witnesses become harder to locate. The other side's insurer is usually investigating within days. Starting does not mean litigating — it means preserving evidence and obtaining records while they exist, which can be done without the family having to make decisions about the claim itself for some time.

Because it requires the estate rather than the family, and that is an extra step nobody thinks about while grieving. It also has less intuitive appeal — the wrongful death claim describes a loss the family feels directly, while the survival claim describes what the person endured before death. But where there was a period of conscious suffering, or substantial medical expense before death, the survival claim can be the larger of the two. Missing it does not merely reduce the recovery; it leaves a separate cause of action unbrought and subject to the same two-year deadline.

Because proportionate responsibility applies to a wrongful death claim exactly as it does to an injury claim. Under § 33.001 the family recovers nothing if the person who died is found more than 50 percent responsible, and every percentage point below that reduces the award. So the defence will examine speed, seatbelt use, position, intoxication, and any decision that contributed. This is distressing for families and it is a normal part of the process. It is answered with the same physical evidence that establishes the defendant's conduct, which is another reason preservation matters so much.

Not equally by default. The jury or the court apportions the wrongful death recovery among the statutory beneficiaries according to their individual losses, so a dependent spouse and a financially independent adult child are not treated identically. The survival claim is different again — it passes through the estate and is distributed under the will or the rules of intestacy, and it may be reachable by estate creditors. Where beneficiaries have differing interests, or a minor is involved, the allocation may require court approval, which is a step worth anticipating rather than discovering late.

It can add defendants and remove one. If the death happened at work and the employer subscribed to workers' compensation, § 408.001(a) makes compensation benefits the exclusive remedy against that employer — but subsection (b) preserves exemplary damages for the surviving spouse or heirs of a deceased employee whose death was caused by an intentional act or omission or by gross negligence. Claims against third parties who are not the employer remain available in full. Where a commercial vehicle is involved, the motor carrier and its insurers come into the case alongside the driver.

Longer than a comparable injury case, generally. The proof is harder because the principal witness is unavailable, the damages require expert evidence about financial support and future earnings, the estate may need to be opened before the survival claim can proceed, and defendants litigate these more vigorously because the exposure is larger. Where a governmental unit or a criminal prosecution is involved, both add their own timetables. Families are better served by a realistic estimate at the outset than by an optimistic one that has to be revised every few months.