Who can file a wrongful death claim in Texas?

The short list: spouse, children and parents

When someone dies because of another person's or a company's wrongful act or negligence, the Texas Wrongful Death Act says the claim is for the exclusive benefit of the surviving spouse, children and parents of the person who died (Civil Practice and Remedies Code § 71.004(a)). That list is short on purpose, and it is the whole list. Each of those family members has their own loss, and each can be compensated for it.

This page answers the questions families ask us about who is in, who is not and who has to take the first step. For an overview of the two kinds of claims and how we handle these cases, see our Texas wrongful death page.

Does one person file for the whole family?

It can be done either way. Under § 71.004(b), the spouse, children and parents may each bring the claim, or one or more of them may bring it for the benefit of all. In practice it is usually one case with everyone in it, because a defendant pays once for the death, not separately to each relative who might sue later.

The money is not split by a fixed formula. Under § 71.010, the jury awards damages in proportion to the injury from the death and divides them among the family members in the shares it decides. A young child who lost a parent and an elderly parent who lost an adult son may receive different amounts. In a settlement, the family decides the division, and we make sure each person's loss is accounted for. Under § 71.011, wrongful death damages are not subject to the debts of the person who died, so creditors of the estate can't take the family's recovery.

What if nobody in the family files?

Texas sets a rule for that. If none of the spouse, children or parents has started the case within three calendar months after the death, the executor or administrator of the estate must bring it, unless all of those family members ask that it not be brought (§ 71.004(c)). Even then, the claim is still for the family members, not for the estate's creditors.

Can adult children file? What about adopted children?

Yes to both. The statute says “children” and sets no age limit, so a 40-year-old daughter has the same right as a 4-year-old son. Legally adopted children count the same as biological children. The same is true of parents: the mother and father of an adult who died are beneficiaries, whatever their child's age.

Stepchildren are different. A Texas court of appeals in Balas v. GlaxoSmithKline (Austin) followed long-standing precedent that only biological or legally adopted children may recover under the Act. A stepchild who was raised by the person who died, but never adopted, is not a statutory beneficiary.

What about a child born outside of marriage?

A child whose parents were never married is still a child. In Garza v. Maverick Market, Inc. (Tex. 1989), the Texas Supreme Court held that a child in a wrongful death case does not have to go through the Family Code's paternity procedures; whether the person who died was the father is a fact to be proven in the case itself. That proof can be a birth certificate, family records or DNA. We gather it.

We weren't legally married. Can I file as the spouse?

Possibly. Texas recognizes informal, or common-law, marriage. Under Family Code § 2.401, it is proven by showing that the couple agreed to be married, then lived together in Texas as spouses, and told others they were married. A couple may also have signed a declaration of informal marriage at the county clerk's office. Living together alone is not enough, and no one under 18 can be a party to an informal marriage. Proof often comes from leases, tax returns, insurance forms, how the couple introduced each other and what family and friends knew.

Can brothers, sisters or grandparents file?

Not under the current statute. Siblings and grandparents are not on the list in § 71.004, however close they were. That is hard to hear, especially when a brother or sister is the one handling everything. A sibling may still have a role on the estate side, for example as the estate's representative, and can be an important witness to what the family lost.

What about the estate's claim?

There is a second claim. Under § 71.021, the injured person's own claim for what they went through before death, such as pain, medical bills and funeral costs, survives and passes to the estate. Texas courts have held that it is brought by the estate's personal representative, or by the heirs when no estate administration is pending and none is necessary (Austin Nursing Center v. Lovato, Tex. 2005). We sort out which path fits your family, including when the person who died lived or had family in another country; a foreign representative of the estate can bring the case without opening a second estate in Texas if the requirements of § 71.012 are met.

What if the death happened at work?

If the employer carried workers' compensation, the family's case against the employer is limited. The exception in Labor Code § 408.001(b) lets the surviving spouse and heirs of the body (the worker's children and their descendants) recover exemplary damages when the death was caused by the employer's gross negligence or intentional act. Parents are not in that group. Claims against other companies are not limited the same way. We explain this in a family member died at work. Can we sue the employer?

Does it matter if the family is undocumented or lives abroad?

No. Texas law does not require the spouse, children or parents to have papers or to live in the United States, and we never ask about immigration status to help a family. A wife in Mexico or parents in Honduras can be part of a Texas claim. Read how families abroad prove the relationship.

How long does the family have?

Under § 16.003(b), a death case generally must be filed within two years, and the clock starts on the date of death. Claims involving a city or other government can require written notice in months. You don't need to have everything decided to call. Jimmy talks with families directly, in English or Spanish, by phone, text, email or video call, and in person when needed, at whatever pace the family can manage. Once you hire us, we deal with the insurance companies, so your family doesn't have to.

Other ways people ask this

Who can sue for wrongful death in Texas?

Only the surviving spouse, children and parents of the person who died. Any one of them can bring the case for all of them.

Can a brother or sister file a wrongful death claim in Texas?

No. Siblings are not beneficiaries under the current Texas Wrongful Death Act. A sibling may still serve as the estate's representative for the separate survival claim.

Can grandparents file?

No. Grandparents are not on the statute's list, even if they raised the person who died.

Can adult children file for a parent's death?

Yes. The statute says children and sets no age limit, so adult children have the same right as minor children.

Can a stepchild file?

Only if legally adopted. Texas courts have held that only biological or adopted children are beneficiaries.

What happens if no one in the family files?

If none of the spouse, children or parents has filed within three calendar months of the death, the executor or administrator of the estate must bring the claim, unless all of them ask that it not be brought.

Can a common-law spouse file?

Yes, if the informal marriage can be proven: the couple agreed to be married, lived together in Texas as spouses and told others they were married.

Authority: Tex. Civ. Prac. & Rem. Code ch. 71 (Wrongful Death Act and survival) · Tex. Civ. Prac. & Rem. Code § 16.003 · Tex. Fam. Code § 2.401 (informal marriage) · Tex. Lab. Code § 408.001 · Garza v. Maverick Market, Inc., 768 S.W.2d 273 (Tex. 1989)