Texas
Texas Wrongful Death Law: Statute, Damages & Survival Actions
Texas gives families two years from the date of death to file a wrongful death claim. Surviving spouses, children, and parents can file directly — no personal representative required.
By 411 Press Legal Desk8 min read
An oil field worker is killed when a poorly maintained crane cable snaps, dropping a 4,000-pound load onto the platform where he is standing. The crane had failed its last inspection. The contractor who owned the crane knew the cable was frayed and chose not to replace it — the replacement would have delayed the project by two days. The worker's wife is seven months pregnant with their second child.
Texas law gives this family a wrongful death claim against the negligent contractor. Under Chapter 71 of the Texas Civil Practice and Remedies Code, Texas provides one of the more straightforward wrongful death frameworks in the country — family members can file directly without waiting for a personal representative to be appointed.
Statute of Limitations
Two years from the date of death. Under Texas Civil Practice and Remedies Code § 16.003(b), a wrongful death claim must be filed within two years of the date the person died.
The clock starts on the date of death, not the date of the incident. If a worker is injured in January and dies from those injuries in March, the two-year period begins in March.
Tolling exceptions: The statute may be tolled for minors (until age 18) and for persons with mental incapacity. The statute of repose is 10 years — no wrongful death claim can be filed more than 10 years after the date of death, regardless of tolling.
Government claims: Claims against Texas government entities under the Texas Tort Claims Act require notice within six months of the death and are subject to specific damage caps.
Who Can File
Texas allows family members to file wrongful death claims directly. Under Texas Civil Practice and Remedies Code § 71.004, the following persons may bring the action:
- Surviving spouse
- Children of the deceased
- Parents of the deceased
One or more of these individuals may file the claim for the benefit of all entitled parties. A personal representative appointment is not required for these family members to file.
If no family member files within three months: The executor or administrator of the estate must bring the action, unless requested not to by all the entitled beneficiaries.
Survival action: Separately from the wrongful death claim, the estate may bring a survival action under § 71.021 to recover damages the decedent could have recovered had they lived — including their own pain and suffering between the injury and death.
Legal Standard
A Texas wrongful death claim requires proof that the death was caused by a wrongful act, neglect, carelessness, unskillfulness, or default of the defendant. The elements are:
- Duty. The defendant owed a duty of care.
- Breach. The defendant breached that duty.
- Causation. The breach was a proximate cause of the death.
- Damages. The survivors suffered compensable losses.
Proportionate Responsibility
Texas's modified comparative fault rules apply to wrongful death claims. Under Chapter 33, if the decedent was 51% or more at fault for their own death, the surviving family members recover nothing.
If the decedent was 50% or less at fault, recovery is reduced by the decedent's percentage of fault. Texas also allows designation of responsible third parties — the jury can assign fault percentages to parties not named in the lawsuit, which reduces the named defendant's share.
This makes wrongful death cases in Texas particularly challenging when there is any question about the decedent's own conduct.
Key Texas Cases
Cavnar v. Quality Control Parking (Tex. 1985)
The Texas Supreme Court addressed prejudgment interest in wrongful death cases, establishing that surviving family members are entitled to prejudgment interest on wrongful death damages from a date six months after the claim was filed. This case is significant because prejudgment interest can add substantially to the total recovery.
Russell v. Ingersoll-Rand Co. (Tex. 1992)
The Texas Supreme Court addressed the distinction between wrongful death claims and survival claims. The court clarified that wrongful death damages compensate the survivors for their own losses (loss of companionship, mental anguish, lost support), while survival damages compensate the estate for the decedent's own losses (pain and suffering before death, medical expenses). Both can be pursued. The court also established that if the decedent had no cause of action — including if their claim would have been barred by the statute of limitations — the heirs have no cause of action to assert under the wrongful death statute.
Jelinek v. Casas (Tex. 2010)
The Texas Supreme Court addressed expert testimony standards in a medical malpractice wrongful death case. Eloisa Casas died after being diagnosed with colon cancer and undergoing subsequent treatment. The case addressed the admissibility and sufficiency of expert testimony in establishing causation in wrongful death claims arising from medical negligence, reinforcing that expert testimony must meet reliability standards and that the connection between the alleged negligence and the death must be established through competent medical evidence.
Common Wrongful Death Scenarios in Texas
Workplace accidents — Texas has a high rate of fatal workplace accidents, particularly in oil and gas, construction, and transportation. Because Texas does not require employers to carry workers' compensation insurance (it is one of the few states where workers' comp is optional), wrongful death claims against employers are more common in Texas than in other states.
Motor vehicle accidents — fatal car, truck, and motorcycle accidents on Texas highways. Texas's high speed limits, significant commercial trucking activity, and vast distances contribute to fatal accident rates above the national average.
Medical malpractice — surgical errors, medication errors, failure to diagnose. Texas medical malpractice wrongful death claims are subject to additional requirements, including a pre-suit expert report within 120 days of filing and caps on non-economic damages.
Premises liability and negligent security — fatal injuries caused by dangerous property conditions or inadequate security. See our Texas premises liability guide and Texas negligent security guide.
Defective products — product liability wrongful death claims when a dangerous product causes a fatal injury.
Available Damages
Wrongful Death Damages (Survivors' Claims)
- Loss of companionship and society — the loss of the positive benefits of the relationship
- Mental anguish — the emotional pain and suffering of the surviving family members
- Loss of care, maintenance, and support — the financial and practical support the decedent provided
- Loss of inheritance — the financial assets the decedent would have accumulated for their heirs
- Lost services — household services, childcare, and other practical contributions
- Funeral and burial expenses
Survival Damages (Estate's Claims)
- Pain and mental anguish the decedent experienced between the injury and death
- Medical expenses incurred between the injury and death
- Lost earning capacity from the date of injury to the date of death
Exemplary (Punitive) Damages
Available when the death was caused by willful misconduct, gross negligence, fraud, or malice. Requires clear and convincing evidence. Capped at the greater of two times economic damages plus non-economic damages up to $750,000, or $200,000.
Medical Malpractice Caps
Texas caps non-economic damages in medical malpractice wrongful death cases at $250,000 per claimant against physicians and $250,000 per claimant against health care institutions (with a maximum of $500,000 against all institutions combined).
Practical Next Steps
If a family member died due to someone else's negligence in Texas:
Act within two years of the date of death. This is the statutory deadline. For claims against government entities, the notice requirement is six months.
Determine whether workers' compensation applies. If the death was work-related, investigate whether the employer carried workers' compensation insurance. If the employer was a non-subscriber (no workers' comp), the family can pursue a wrongful death claim directly against the employer — often with significant advantages, as the employer loses several common defenses.
Preserve evidence immediately. Critical evidence in Texas wrongful death cases includes:
- Accident reports (police, OSHA, company incident reports)
- Medical records documenting the cause and circumstances of death
- The decedent's financial records (tax returns, pay stubs, employment records, retirement accounts)
- Physical evidence (in product liability or workplace cases, the equipment or product involved)
- Photographs and video of the accident scene
Do not communicate with the defendant's insurance company. Texas proportionate responsibility rules incentivize insurers to maximize the fault assigned to the decedent. Any statement by a family member can be used in this effort.
Consult a Texas wrongful death attorney. These cases involve complex damage calculations, proportionate responsibility strategy, and (in medical malpractice cases) additional procedural requirements. An experienced attorney can also determine whether a survival action should be pursued alongside the wrongful death claim.
Related Texas Guides
- Texas Negligent Security Law — when a security failure contributes to a death
- Texas Premises Liability Law — when a property condition causes a fatal injury
Last updated: May 27, 2026. Consult a Texas attorney for advice specific to your situation.
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