Grief doesn’t pause for legal deadlines. In Texas, the window to bring a wrongful death claim is fixed by statute, and missing it means forfeiting the right to compensation entirely, no matter how clear the negligence. For families who have just lost someone to a preventable accident, a medical error, or someone else’s reckless conduct, understanding those deadlines and who actually has the right to file isn’t a bureaucratic formality. It’s the difference between holding the responsible party accountable and bearing that loss alone.
At The Law Offices of Jed Silverman, we work with families navigating both the civil and criminal dimensions of Texas law. What follows is a clear explanation of how Texas wrongful death law works: who can bring a claim, how long they have, what exceptions can extend that window, and why pursuing only one type of claim often means leaving significant compensation on the table.
What Texas Law Means by Wrongful Death
Texas Civil Practice and Remedies Code § 71.002 defines wrongful death as a death caused by another party’s wrongful act, neglect, carelessness, unskillfulness, or default. The underlying requirement is that the deceased must have had the right to bring a personal injury claim had they survived. If the person who died could have sued for their injuries, their surviving family can sue for their death.
One point that surprises many families: a civil wrongful death claim and a criminal prosecution operate under completely different rules. A criminal case requires proof beyond a reasonable doubt; a civil wrongful death claim requires only a preponderance of the evidence, meaning it’s more likely than not that the defendant’s conduct caused the death. A wrongful death case can proceed and succeed even if no criminal charges are filed, or even if the defendant was acquitted in criminal court. The two legal tracks run independently of each other.
Texas law also extends wrongful death coverage to the loss of an unborn child under Tex. Civ. Prac. & Rem. Code § 71.003, though the statute contains several exceptions, including claims arising from lawful medical procedures performed with the requisite consent.
Who Has the Legal Right to File in Texas
Texas Civil Practice and Remedies Code § 71.004 is specific about who has standing (meaning the legal right) to bring a wrongful death claim. Standing is limited to three groups: the surviving spouse, biological or legally adopted children, and parents of the deceased. Siblings, grandparents, and other extended family members don’t have standing under Texas law, regardless of how close the relationship was.
Several nuances matter here and are underexplained in most general overviews:
- Common-law spouses may qualify as a surviving spouse if the informal marriage meets Texas requirements, including a signed declaration or evidence of agreement to be married, cohabitation in Texas, and holding out as married to others.
- Stepparents can’t file unless a legal adoption was completed before the death; a parental relationship alone isn’t enough.
- Children born outside of marriage must establish paternity by clear and convincing evidence before asserting standing.
- Adopted children may file on behalf of their adoptive parents but not their biological parents, whose legal relationship ended at adoption.
If no eligible family member files within three calendar months of the death, the personal representative of the estate (also called the executor or administrator) may file on behalf of the family. However, if all eligible family members affirmatively request that no suit be filed, the personal representative can’t override that decision. This three-month window is a practical decision point most families don’t know exists.
The Two-Year Deadline & When It Can Be Extended
Texas imposes a two-year statute of limitations for wrongful death claims under Tex. Civ. Prac. & Rem. Code § 16.003. The clock runs from the date of death, not the date of the underlying accident or medical event. When a person survives an incident for days or weeks before dying from their injuries, that distinction can shift the filing deadline meaningfully. A crash doesn’t start the two-year clock; the death that follows does.
There’s also a 10-year statute of repose that can cut off claims entirely after a decade, regardless of when the death was discovered. This hard ceiling rarely appears in discussions of this topic, but it matters in cases involving toxic exposure, latent harm, or the delayed onset of a fatal condition.
Three recognized circumstances can toll (meaning legally pause or delay) the two-year statute of limitations:
- Minor children: If an eligible claimant is a minor at the time of the death, the two-year clock doesn’t begin running until they turn 18.
- Fraudulent concealment: If the responsible party actively concealed the cause of death, the clock begins when the negligence was discovered or reasonably should have been discovered.
- Physical or mental incapacity: An eligible claimant who was injured in the same incident and rendered physically or mentally incapacitated may have the clock tolled during their incapacity.
Claims against a government entity (a city, county, or state agency) may require formal written notice within six months of the death as a condition of filing. Fatal accidents involving a government vehicle, a public facility, or a public employee can trigger this compressed timeline. Missing the notice requirement can bar the claim entirely, independent of the two-year limitation.
Wrongful Death vs. Survival Action: Two Claims, One Loss
Most families pursuing compensation after a death know about wrongful death claims. Fewer know about survival actions, and not understanding the distinction often means leaving a significant portion of available compensation unclaimed.
A wrongful death claim under § 71.004 compensates surviving family members for their own losses: lost financial support, loss of companionship and society, mental anguish, and funeral and burial costs. A survival action under § 71.021 serves a different purpose. It continues the legal rights the deceased person had before they died. If the person experienced pain and suffering, incurred medical expenses, or lost earnings between the incident and their death, those claims survive and can be asserted on their behalf. Proceeds from a survival action go to the estate and are distributed under the will or, absent a will, under Texas intestacy laws.
Both claims can be filed simultaneously in the same lawsuit, but damages can’t overlap. Pre-death pain and suffering belongs in the survival claim; post-death losses to the family belong in the wrongful death claim. Pursuing only the wrongful death claim leaves unclaimed whatever compensation the deceased could have recovered for what they personally endured. In cases involving deaths that followed prolonged hospital treatment, or fatal crashes where the victim survived for hours or days, the survival claim can be substantial.
What Damages a Family Can Recover
Recoverable damages in a Texas wrongful death case fall into several categories. Understanding each helps families assess the full scope of what a claim may address.
Economic Losses
These include the deceased’s lost earning capacity over their expected working lifetime, loss of inheritance the family would have received, medical expenses incurred between the incident and death, and funeral and burial costs.
Non-Economic Losses
Texas allows recovery for loss of companionship and society (the guidance, care, and affection the family has lost) and for the mental anguish suffered by each eligible family member. These damages aren’t capped in wrongful death cases; Texas doesn’t impose a limit on compensatory damages in this context.
Exemplary Damages
When death results from a willful act or omission or gross negligence, § 71.009 allows a claim for exemplary damages (also called punitive damages) intended to punish the responsible party. Under Chapter 41 of the Texas Civil Practice and Remedies Code, exemplary damages are generally capped at the greater of $200,000 or two times economic damages plus up to $750,000 in non-economic damages.
One detail that concerns many families: wrongful death damages recovered are protected from the decedent’s outstanding debts under § 71.011. A family worried that the deceased had significant financial obligations doesn’t need to fear that creditors will reduce what the wrongful death recovery delivers to them directly.
When to Talk to an Attorney
Several time pressures run simultaneously in Texas wrongful death cases. The two-year statute of limitations runs from the date of death, while evidence, witness recollections, and accident reconstruction opportunities degrade well before that deadline arrives. The three-month window for eligible family members to file before the personal representative may act creates an earlier internal decision point, and deaths involving a government entity add a six-month notice requirement that can compress the timeline further.
Whether a wrongful death claim, a survival action, or both apply depends on the specific facts of what happened and who was harmed. The Law Offices of Jed Silverman can evaluate those facts with you and help you understand which claims are available. Reach us at (713) 597-2221.