What to Know When Filing a Wrongful Death Claim

What to Know When Filing a Wrongful Death Claim

When a person is not only injured but killed, due to the wrongful acts of another party or parties, a wrongful death claim can be brought for the resulting damages. It is essentially a personal injury lawsuit brought by the survivors of the deceased. Although recovering monetary compensation cannot make up for the death of a loved one, it can help you cope financially with the unexpected tragedy and the costs and losses that come with it. Losing a loved one is always devastating, but the pain may be even worse if you know the death was preventable and was caused by another’s carelessness or misconduct. A wrongful death claim is a way you can hold the person or persons that caused the death legally responsible for their actions and obtain compensation for your losses.

Texas Wrongful Death Law

In Texas, wrongful death is defined under the Texas Civil Practice and Remedies Code in Chapter 71. Under that Texas wrongful death law, a surviving family member must be able to prove that their loved one’s death was caused by:

  • Neglect
  • Carelessness
  • Wrongful acts
  • Unskillfulness
  • Failure to fulfill an obligation (default)

The most common cause of wrongful death is negligence and the family must be able to prove that by a preponderance of the evidence, meaning your lawyer must show it is greater than 50 percent likely that the party or parties you are suing are responsible for your loved one’s untimely passing. As in any negligence case, the legal elements that must be shown are a duty of care owed to the deceased by the party or parties you are suing, a breach of that duty, the breach was the cause of the death, and the death resulting in damages.

Wrongful Death Statute of Limitations

There are time limits in which a wrongful death claim can be filed called a statute of limitations. A person has only two years from the date of the death to file a wrongful death lawsuit unless one of a very few specific exceptions is involved such as the plaintiff being a minor child or mentally or physically impaired during the two-year period, among others.

Who Can File a Wrongful Death Lawsuit?

Texas law limits who can legally file a wrongful death lawsuit. The only parties who can sue and claim damages are the decedent’s surviving spouse, children, and parents. If none of those individuals bring a claim within three months of the death, the personal representative of the decedent’s estate can file a wrongful death lawsuit.

Survival Action

A survival action is a personal injury claim filed by the deceased person’s estate for compensation for the injuries they suffered before they died. A representative of their estate files a survival claim, which allows the estate to pursue compensation for items including the medical bills and physical and emotional pain they suffered prior to their death. The financial recovery obtained in a survival action goes to the decedent’s estate for distribution to their heirs.

Common Causes of Wrongful Death

While almost anything can cause wrongful death, some causes are more commonly seen. The most common causes of wrongful death include car accidents, medical malpractice, workplace accidents, defective products, criminal acts, nursing home abuse and neglect, and more.

Steps To Take After a Wrongful Death

After a wrongful death in Texas, the surviving loved ones of the deceased should take the following steps:

  1. Obtain the death certificate
  2. Locate a will
  3. Identify the surviving loved ones who are legally eligible to file a wrongful death claim
  4. Collect evidence such as pictures and receipts
  5. Document the losses being suffered
  6. Contact an experienced attorney for help

Wrongful Death Damages

The damages available in a wrongful death claim vary from those you can seek in a personal injury case. Those damages include:

  • Medical expenses
  • Funeral and burial expenses
  • Lost wages
  • Loss of future earnings / lost earning capacity
  • Pain and suffering of the deceased before they passed away
  • Exemplary (also called punitive) damages
  • Lost support and care
  • Loss of household support and services
  • Loss of companionship
  • Pain and suffering of the survivors
  • Lost inheritance

Houston Wrongful Death Claims Attorneys

Wrongful death claims are legally and emotionally complex. While there is no law requiring those who have lost loved ones in an accident to hire a lawyer, it is highly advisable to. Working with an experienced Houston, Texas wrongful death lawyer is the best way to ensure you obtain the maximum compensation possible and to ensure justice is done for your loved one’s untimely death.

Dax F. Garza is Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization, a certification awarded to less than two percent of licensed Texas lawyers. He is a nationally recognized and award-winning attorney, having been listed in The Best Lawyers in America® for Personal Injury Litigation-Plaintiffs in both 2021 and 2022. He has also been selected for inclusion in Texas Super Lawyers by Thomson Reuters for over 10 years from 2011-2022 and has been rated one of the Top 100 Lawyers in Houston.

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