A "wrongful death" claim is a statutory cause of action that may be brought on behalf of a surviving spouse, children, and parents of a decedent to compensate them for the losses they sustained as a result of the wrongful death of their family member. The "wrongful" act that resulted in death may have been intentional, reckless, or negligent as long as it is of the character that would have permitted the decedent to maintain an action for injuries had death not resulted.

Whereas a "wrongful death" claim seeks to recover compensation for the damages sustained by the surviving spouse, children and parents, Texas law also provides that a "survival action" may be brought to recover damages sustained by the decedent. The decedent's claims for personal injuries arising from the wrongful act that resulted in death are not extinguished by the death. Instead, they survive to and in favor of the estate, heirs, and legal representatives of the decedent. Survival actions are typically filed in conjunction with wrongful death claims.

Wrongful death claims may be filed by the surviving statutory beneficiaries, or the decedent's personal representative. The surviving statutory beneficiaries include the surviving spouse, children, and parents of the deceased.

If there is a legal representative charged with administration of the estate, the representative is the appropriate person to bring the survival action. If there is no legal representative, all of the heirs may bring the survival action jointly on behalf of the estate.

Parents may recover for the loss of companionship and society of their child as well as for mental anguish caused by the death of their child.

If the decedent was a minor child, the parents may recover the value of the child's services from the time of death until the date the child would have reached the age of majority, less the cost of the child's support, education, and maintenance during the period of minority, plus the value of any financial contributions that the child in reasonable probability would have made to the parents after the child reached the age of 18.

The parents of an adult child may generally recover the value of future financial contributions that the deceased child in reasonable probability could have been expected to make to the parent.

A surviving spouse may recover damages for loss of companionship and mental anguish caused by the death of his or her spouse. The surviving spouse may also recover financial contributions that he or she would have received in reasonable probability, as well as the financial value of intangible services that the deceased spouse would have rendered in reasonable probability.

A surviving child may recover damages for the loss of companionship and mental anguish caused by the death of his or her parent.

A minor child of a decedent may also recover the sum that the decedent would reasonably and probably have contributed to the maintenance of the child and the value of the services that the decedent in reasonable probability would have rendered in training, advising and educating the child.

Adult children may also recover the sum that the decedent would reasonably and probably have contributed to the child.

In certain cases, claimants may also be entitled to damages for loss of inheritance as well as punitive damages.

Generally speaking, damages recoverable in a survival action are limited to those sustained by the decedent prior to his or her death. They include damages for physical pain, suffering, property damages, and medical expenses. Funeral expenses are also recoverable in a survival action. In certain cases, punitive damages may also be recoverable.

Given that wrongful death claims and survival actions generally involve a variety of complex legal issues, the first step is to consult an attorney. An attorney should be consulted as soon as reasonably possible because there are statutes of limitations and possibly other critical deadlines that may impact the case.

Because such determinations involve the professional judgment (based upon many factors and considerations) of experts and attorneys, it is recommended that you seek a "second opinion" from one or more qualified attorneys if told that your case is without merit.

Some attorneys (including the sponsor of this website) will agree to handle wrongful death cases and survival actions on a contingency fee arrangement. This means that the attorney will not charge an hourly rate for his or her services, but instead will be paid a percentage of the recovery in the event of a settlement or judgment. In many instances, such attorneys will also pay the case development expenses (such as expert fees, deposition costs, etc.) with the understanding that he or she will recoup such costs only in the event of a recovery. Therefore, you may be able to secure legal representation without having to pay any attorney's fees or expenses out of your own pockets.

There is simply no easy answer to this question. The vast majority of all cases, including wrongful death cases, are settled prior to trial. Some cases are settled prior to the filing of a lawsuit, while others go to trial. A wrongful death case, if litigated to trial, could last a number of years. One who pursues a wrongful death case should understand from the outset that a quick resolution cannot be guaranteed.

In Texas, the "statute of limitations" in most claims involving personal injury and death is two years from the date the claim accrued. In wrongful death cases, this is the date of death. Cases involving medical malpractice are governed by a different limitations procedure that may be shorter than two years from the date of death. Certain exceptions do exist under the law in certain circumstances. For instance, the foregoing time period may be extended for certain individuals, including those who are minors or otherwise incompetent. Additionally, in certain instances, such as when a medical profession conceals the incident of malpractice, victims that did not know, and could not have known of the malpractice until sometime after the incident are allotted additional time under the law to file a lawsuit. The foregoing exceptions are fact sensitive and require the analysis of a qualified attorney to determine if they are applicable.

In certain cases, there may also be other deadlines within the first two years that may also impact the case. For example, claims against government entities may require that the entity or entities be put on "notice" much earlier than the statute of limitations period. Furthermore, given that expert and legal analysis must be done prior to filing a lawsuit, you should not wait until the statute of limitations period is nearing its end because the attorney may not have enough time to complete his or her review prior to its expiration.

It is also advisable to consult an attorney as soon as possible for other reasons as well. Memories of the event or events in question tend to fade in witnesses, potential witnesses may later be unavailable because they have moved, become incapacitated, etc.