What Families Can Do in the First 7 Days: What a Wrongful Death Lawyer in Houston had to say.
- The Spencer Law Firm
- Sep 19
- 5 min read
In Texas, a wrongful death claim lets the spouse, children, or parents recover for losses caused by a loved one’s death; if they don’t file within 3 months, the executor may file. A separate survival action belongs to the estate for the decedent’s own pre-death injuries. Most claims have a 2-year deadline. Special caps apply in medical malpractice deaths.
At a Glance: Wrongful Death in Texas
Who can sue: spouse, children, parents; executor after 3 months if they don’t.
Deadline: generally 2 years from the date of death (some exceptions).
Survival action: estate’s claim for the decedent’s pre-death injuries.
Damages: economic, non-economic; exemplary for gross negligence/willful acts.
Med-mal deaths: statutory damage caps; CPI-adjusted wrongful-death cap.
Texas law splits a tragedy into two claims, one for the family’s loss and one for what your loved one went through. Add a 2-year clock, a 3-month rule, jury-set shares, and special med-mal caps, and it’s easy to feel overwhelmed. This guide translates the statutes into clear next steps for Houston families.
What a Wrongful Death Lawyer in Houston Can Do for Your Family
Texas allows actual-damage claims when an injury causes death. By statute, the surviving spouse, children, and parents are the only beneficiaries, and they may file together or one files for all. If no file is made within three calendar months, the executor/administrator must file unless all beneficiaries request otherwise.
A jury may award damages proportionate to the injury and divide the award among living beneficiaries; importantly, wrongful-death damages are not subject to the decedent’s debts.
Exemplary (punitive) damages are available when death is caused by willful acts or gross negligence.
Who Can File a Wrongful Death Claim in Texas?
Eligible parties: surviving spouse, children (including adopted), and parents (including adoptive). Siblings and grandparents are not listed as beneficiaries. If beneficiaries don’t sue within 3 months, the executor or administrator shall file unless requested not to do so.
Filing deadline: Most wrongful-death suits must be filed within 2 years of death; the cause of action accrues on the date of death. Certain statutes may toll or modify deadlines (e.g., asbestos/silica). Talk to counsel promptly.
What Is a Survival Action in Texas and How Is It Different from a Wrongful Death Claim?
A survival action is the decedent’s own personal injury claim that survives to the heirs, legal representatives, and the estate. It seeks damages the person could have recovered if they had lived (e.g., pre-death pain, medical bills, lost wages). Proceeds belong to the estate and are subject to normal estate administration.
Under the Estates Code, claims against an estate are paid according to priority and generally require court approval before payment—meaning survival-action proceeds can be affected by creditor claims during probate.
Wrongful Death vs. Survival Action in Texas: Key Differences
Issue | Wrongful Death | Survival Action |
Who files | Spouse, children, parents (or executor after 3 months) | Heirs, legal reps, estate |
Who gets the money | Beneficiaries directly | Estate (then distributed via will/intestacy) |
Subject to decedent’s debts? | No (damages not subject to debts) | Yes (estate pays claims per Estates Code) |
Typical damages | Loss of support, companionship, mental anguish, loss of inheritance; exemplary in egregious cases | Pre-death pain/suffering, medical bills, lost wages |
Filing deadline | Generally, 2 years from death | Generally 2 years (estate/probate steps may affect logistics) |
Sources: Tex. Civ. Prac. & Rem. Code §§71.004, 71.009, 71.010, 71.011, 71.021; §16.003; Estates Code Ch. 355.
What Damages Can Families Recover in a Texas Wrongful Death Case?
Economic: lost earning capacity, services, support, care, funeral expenses, and loss of inheritance (what the decedent would have saved). Non-economic: mental anguish, loss of companionship/society. Allocation among beneficiaries is set by the jury (or court).
Exemplary damages may be awarded when the death results from willful acts or gross negligence.
Are There Damage Caps in Texas Medical Malpractice Wrongful Death Cases?
In health-care liability deaths, Texas caps non-economic damages at $250,000 per physician/provider and $250,000 per institution (up to $500,000 total across institutions). Separately, §74.303 sets a CPI-adjusted cap for all damages (including exemplary) in wrongful death/survival med-mal cases, with an exclusion for necessary medical and custodial care expenses. The CPI adjustment is measured from Aug. 29, 1977 to the judgment/settlement date. (Exact current dollar figures are case-time specific.)
How Does Comparative Fault Affect a Wrongful Death Claim in Texas?
Texas follows proportionate responsibility: if the claimant’s percentage of responsibility exceeds 50%, recovery is barred; otherwise, damages are reduced by the decedent’s share of responsibility as found.
Do Wrongful Death and Survival Claims Go Through Probate in Texas?
Wrongful death proceeds go directly to the statutory beneficiaries and do not pass through the estate or pay estate debts.
Survival proceeds go to the estate, then are subject to estate claim procedures and priorities before distribution to heirs or per will.
Are Wrongful Death Settlements Taxable Under Federal Law?
Generally, damages on account of personal physical injury or sickness are excluded from gross income, but punitive damages and interest are taxable. Ask your CPA.
What Families Should Do After a Wrongful Death in Houston (7-Day Checklist)
Calendar the 2-year date from death; don’t miss it.
Identify beneficiaries (spouse/children/parents) and the executor/administrator if a survival claim is likely.
Collect evidence: police reports, medical records, photos, witness info, and funeral bills.
Open/coordinate probate if survival damages are expected so the estate can receive funds and address creditor claims.
Speak with counsel early to preserve evidence and evaluate exemplary-damage exposure.
People Also Ask (FAQ)
Who can sue for wrongful death in Texas?
The surviving spouse, children, and parents may sue. If no file within 3 months of death, the executor/administrator must file unless all beneficiaries request otherwise.
What’s the deadline to file a wrongful death lawsuit?
Generally, 2 years from the date of death; the cause of action accrues on death. Limited exceptions can toll or alter the period, ask counsel about your facts.
How is a survival action different from wrongful death?
A survival action belongs to the estate for the decedent’s own damages before death; wrongful death compensates family members for their losses.
Do wrongful death awards pay estate debts?
No. Wrongful-death damages are not subject to the decedent’s debts; survival proceeds enter the estate and follow probate claim rules.
Are there damage caps in Texas medical malpractice deaths?
Yes. Non-economic caps apply under §74.301, and §74.303 imposes a CPI-adjusted cap on total damages in wrongful-death/survival med-mal cases (with some exclusions).
Will comparative fault reduce recovery?
Yes. Texas bars recovery if responsibility exceeds 50%; otherwise, awards are reduced by the percentage of responsibility.
Get our Houston Wrongful Death Starter Checklist (PDF)—forms, deadlines, and evidence tips.
Download our Texas Survival vs. Wrongful Death One-Pager to share with family and your executor.
Free, confidential case review with The Spencer Law Firm’s Houston team—call now or request a same-day consult.
Written by Team of Legal Writers at The Spencer Law Firm. Reviewed for legal accuracy by Attorneys at the Firm, Texas-licensed attorney at Spencer Law Firm.
Last updated: September 19, 2025 (America/Houston)
Disclaimer: This guide is for general information only and is not legal or tax advice.
Additional Resources to Help You:
Internal:
Houston wrongful death lawyer → Learn more
Probate attorney Houston → Learn more
External:
Texas Civil Practice & Remedies Code Ch. 71 (wrongful death & survival). Click here
Texas Civil Practice & Remedies Code Ch. 74 (medical liability caps). Click Here
IRS Publication 4345 + 26 U.S.C. §104(a)(2) (tax treatment). Read Here
Disclaimer
This article is for informational purposes only and does not constitute legal advice. Wrongful death and survival claims in Texas involve complex laws and strict deadlines that depend on each family’s unique situation. Reading this article does not create an attorney–client relationship with The Spencer Law Firm. Families who have lost a loved one should seek guidance from a licensed attorney in Houston or their local jurisdiction. Past case results do not guarantee future outcomes.
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