• By: Hank Stout
  • Published: April 2016

When one party causes injury to an individual, the injured victim can recover for their losses by filing a personal injury claim. The situation can become complicated, however, if a victim tragically dies from their injuries, as a deceased person clearly does not have the ability to file a legal claim. For this reason, Texas law provides legal recourse in the event of a death by creating an action for wrongful death.

Who can File a Wrongful Death Claim?

Not every loved one has the right to file a wrongful death claim as the law specifically identifies the parties who can recover for a wrongful death. The following surviving family members are the only ones eligible to do so:

  1. Spouse — by legal or common law marriage, even if they are separated at the time of the death;
  2. Parents — Biological or adoptive, but not including stepparents or grandparents;
  3. Children — Includes adult children, biological or adoptive.

If any of the above fails to file a wrongful death lawsuit in a certain period of time, the personal representative of the estate of the deceased victim may do so on behalf of the estate. Note that siblings or unmarried romantic partners are not eligible to file for wrongful death.

What Constitutes a Wrongful Death?

A wrongful death occurs if the death is caused by another party’s negligence, carelessness, or intentionally wrongful act. Wrongful deaths commonly result from the following:

  • Motor vehicle accidents;
  • Falls;
  • Workplace accidents;
  • Defective or dangerous products;
  • Dangerous property hazards;
  • Fires;
  • Medical malpractice;
  • Violent acts.

In order to prevail in a wrongful death lawsuit, the surviving family members must present sufficient evidence to prove that the responsible party had a duty of care and failed to abide by that duty. For example, a driver has the legal duty to drive in a manner that is reasonably safe for the road, traffic, and weather conditions.

If a driver is speeding in the rain, driving aggressively, texting and driving, driving under the influence, or engaging in any other potentially dangerous behaviors, they can be held liable for any deaths that result from a collision.

When can you File a Wrongful Death Lawsuit?

Following a sudden, tragic death, it is only natural that family members would want to take time to grieve and put back together the pieces of their lives. However, it is important to realize that there is not an unlimited amount of time to file a wrongful death lawsuit.

Texas law sets out a strict two-year deadline for wrongful death actions, which is called the “statute of limitations.” This deadline is two years from the date of the death–not the date of the incident that caused the death. Therefore, if a victim spent six months in the hospital following a car accident before they succumbed to their injuries, the clock starts running on the date they passed away.

While two years may seem like a long time, filing for a successful wrongful death claim requires extensive and often complex preparation. The petition filed must meet many different requirements and include enough information for the court to rule that a valid claim exists. The petition must be able to stand up to the inevitable challenges by the other party.

Therefore, it is important to give a wrongful death attorney enough time to fully investigate the circumstances surrounding a death, identify the correct negligent parties, gather evidence, and skillfully draft a petition. If you suspect you have a possible wrongful death claim, you should consult with a lawyer as soon as possible so they can begin working on your case.

Reasons for Filing a Lawsuit

There are many different reasons why family members would want to seek a wrongful death claim, including financial compensation and a sense of justice for their loss. Some losses that may be compensated if you prevail in a wrongful death case include:

  • Lost financial support and earning capacity of the deceased;
  • Lost services and support the deceased would have provided;
  • Lost comfort and companionship;
  • Lost inheritance that would have existed had the victim lived a longer life;
  • Emotional and mental pain and suffering, distress, and anguish of the surviving family members.

Because many of these losses cannot be objectively quantified, the amount available for recovery in a wrongful death action can vary significantly from case to case.

An Experienced Wrongful Death Attorney can Help

The above is a general overview of often complex wrongful death lawsuits. An experienced Houston wrongful death lawyer can provide more information regarding your rights and can evaluate your situation to determine whether you have a claim.

About the Author

Hank Stout is a founding partner at Sutliff & Stout, Injury & Accident Law Firm. Hank earned his doctor of jurisprudence from South Texas College of Law and has been actively trying personal injury cases for over ten years. He was recognized by Thompson Reuters as a Rising Star from 2012-2014 and has been recognized as a Super Lawyer since 2014 (a distinction given to less than 1% of the lawyers in the state of Texas). He has earned a Superb rating by Avvo, and is a member of the Million Dollar Advocates Forum. To learn more, read Hank's full bio here.

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