"Survival Claims" vs. "Wrongful Death" in Texas

What Cypress, TX Families Need to Know About "Survival Claims" vs. "Wrongful Death"

Losing a loved one suddenly and tragically due to another’s carelessness is devastating and can result in immeasurable grief and loss. Aside from the emotional distress and suffering, families often experience financial ruin and bankruptcy from medical bills, funeral and burial expenses, loss of future income and support, and other economic damages. 

While no legal action can bring your loved one back, Texas law provides two different legal claims for recovery of economic and non-economic damages when a family member dies because of another’s negligence or intentional acts – a "Survival Claims" vs. "Wrongful Death" claim. Although both claims name the same defendant, there are critical differences in these claims, and understanding how a wrongful death differs from a survival claim can be an important first step for Cypress families who want to hold the responsible parties accountable and pursue the full and just compensation to which they may be entitled.

Wrongful Death Claims: 

When the Family Files for the Loss of a Loved OneA “wrongful death” claim in Texas is brought by the deceased’s family members to recover monetary compensation for the survivors’ losses. According to the Texas Civil Practice and Remedies Code, wrongful death lawsuits may be filed by the deceased’s surviving spouse, children (including adopted children), and parents (including adoptive parents).

The types of damages that can be recovered in a wrongful death claim include the following:

Loss of Companionship and Society: 

Monetary compensation for the survivors’ emotional pain, grief, and loss of the deceased’s love, companionship, comfort, and support.

Loss of Inheritance: 

Economic losses for the support, income, and property that the deceased would have provided and passed on to the survivors had the person lived.

Lost Earning Capacity:

Monetary compensation for the financial support the deceased would have provided to family members over the course of his or her lifetime.

Mental Anguish: 

Suffering for the survivors’ physical pain, mental anguish, and emotional distress.

Funeral and Burial Expenses: 

Reasonable funeral and burial expenses for the decedent’s last illness and death.

One of the most significant differences between a survival claim and a wrongful death action is who receives the proceeds from a successful lawsuit: in a wrongful death case, the money goes directly to the surviving family members, not to the deceased’s estate. The statute of limitations for a wrongful death lawsuit in Texas is generally two years from the date of death.

Survival Claims: 

When the Estate of the Deceased Files for the Loss of a Loved One

A “survival claim” (also referred to as a “Survival Action”) is a personal injury lawsuit filed by the deceased person’s estate to seek monetary compensation for the deceased person’s own injuries and damages.

Essentially, a survival action allows a personal injury claim that the deceased person would have been able to bring himself or herself if he or she had not died in the accident to survive the death and be brought by the person’s estate.

The types of damages that can be recovered in a survival action include the following:

Medical Expenses: 

Medical bills for treatment of the injuries sustained from the date of the incident to the date of death.

Pain and Suffering: 

Physical pain, mental anguish, and emotional distress the deceased suffered from the date of the incident to the date of death.

Lost Wages: 

Lost income and support the deceased provided from the date of the incident to the date of death.

Property Damage: 

Damage to the deceased’s property.

In contrast to a wrongful death claim, the proceeds from a successful survival action are not paid directly to the deceased person’s family members, but rather to the deceased’s estate. The estate’s executor (administrator) then has a responsibility to distribute the assets according to the decedent’s will (if he or she had a will) or in accordance with Texas’s laws of intestacy if the deceased did not have a will. The statute of limitations for a survival claim is generally two years from the date of the injury (or, in some cases, from the date of discovery of the injury) though it can be tolled (delayed) for up to one year from the date of death or the date an executor is appointed.

Can you file a survival claim and a wrongful death lawsuit at the same time?

Yes, in many cases. If your loved one suffered injuries due to another’s negligence before his or her death and surviving family members also suffered losses and damages, it is possible to file a wrongful death claim and a survival action at the same time. Filing both a wrongful death and a survival lawsuit can help ensure that all injuries and damages suffered by all parties are addressed and compensated.

Contact an Experienced Cypress, TX Wrongful Death and Survival Action Lawyer Today

If you are a Cypress family who has lost a loved one because of another’s negligence or intentional acts, Shaw Clifford and the Law Office of Shaw Clifford can explain your rights and help you decide how to proceed. 

We understand Texas law and will assess the unique facts and circumstances of your case and fight hard for the justice and compensation that your family deserves.

Contact Shaw Clifford Today