If you’ve lost someone you love, we’re so sorry. When a death is caused by someone else’s negligence, that kind of grief often comes with a lot of questions. One of the first is usually some version of “Who is actually allowed to do something about this?”
In Texas, the answer is more specific than most people expect. The law draws a clear line around who can bring a wrongful death claim, and some very close family members fall outside it. Here’s how it works.
Who Qualifies in Texas: Spouses, Children, and Parents
Under the Texas Wrongful Death Act, a wrongful death claim exists for the exclusive benefit of three groups:
- The surviving spouse
- The children of the person who died
- The parents of the person who died
Texas law does not extend this right to any other relatives, and there is no age limit for eligible family members. An adult child can bring a claim for the death of a parent, and parents can bring a claim for the death of an adult son or daughter. Adopted children and adoptive parents qualify the same way biological family members do.
Minor children are eligible too. Because a child can’t file a lawsuit on their own, a parent, guardian, or other adult acting on the child’s behalf brings the claim for them.
Eligibility is based on the legal relationship, not on how close the family was. A child who had been estranged from a parent, for example, can still bring a claim. The relationship does still matter, though. It can affect how much a jury awards for loss of companionship and mental anguish.
The same principle applies to spouses. A husband or wife who was separated but still legally married at the time of death is generally still considered a surviving spouse. Once a divorce is final, a former spouse is no longer eligible.
Texas law also allows a wrongful death claim for the death of an unborn child at any stage of pregnancy, with limited exceptions.
Who Can’t File a Wrongful Death Claim in Texas
This is where many families are caught off guard. The following people cannot bring a wrongful death claim in Texas, no matter how close they were to the person who died:
- Brothers and sisters
- Grandparents
- Grandchildren
- Aunts, uncles, and cousins
- Stepchildren who were never legally adopted
- Fiancés and unmarried partners
There is one important exception on that last point. Texas recognizes informal marriage, often called common-law marriage. If a couple agreed to be married, lived together in Texas as spouses, and presented themselves to others as married, the surviving partner may qualify as a spouse under the law. Proving an informal marriage takes evidence, so it’s worth talking to an attorney early if this applies to you.
Wrongful Death Claims vs. Survival Claims
After a wrongful death, Texas actually allows two separate claims, and they don’t benefit the same people.
The wrongful death claim belongs to the surviving spouse, children, and parents. It compensates them for their own losses, like the financial support and companionship their loved one would have provided. This money goes directly to those family members.
The survival claim belongs to the estate of the deceased person. It’s the claim the person who died would have had if they had lived, such as for the pain they experienced before passing. Any recovery passes through the estate to the person’s heirs, either under their will or under Texas inheritance law if there was no will.
That’s how siblings, other relatives and even non-relatives, can sometimes end up sharing in a recovery even though they can’t bring a wrongful death claim. If they are an heir to the estate or beneficiary under a will, they may benefit from the survival claim.
The two claims are usually filed together, but the money is handled differently. Under Texas law, wrongful death damages are not subject to the debts of the person who died. Survival claim damages go into the estate, where creditors may have a claim to them.
For a closer look at the kinds of losses a wrongful death claim can cover, see our guide to what a wrongful death claim can recover after a fatal DFW accident.
Does Every Family Member Have to File?
No. Any one of the eligible family members can file the wrongful death lawsuit on behalf of everyone who qualifies. If a spouse files, for example, the children and parents are still included in the claim. Not every family member has to agree before a claim is filed.
If the case goes to trial, the jury decides how the damages are divided among the eligible family members based on each person’s loss.
Can You File if Your Loved One Was Partly at Fault?
A family may still be able to recover even if the person who died shared some responsibility for the accident. Under Texas’s comparative fault rules, the damages are reduced by the percentage of responsibility assigned to the person who died. However, if that person is found more than 50% responsible, the family cannot recover.
This matters because fault is often the first thing the other side disputes. In cases involving commercial trucks and company vehicles, insurers and defense teams frequently argue that the person who died made a mistake that contributed to the crash. A careful investigation early on helps make sure responsibility is assigned where it belongs.
How Long Do You Have to File a Wrongful Death Claim in Texas?
In most cases, Texas families have two years from the date of death to file a wrongful death lawsuit. Some situations have shorter notice deadlines or special rules, so it’s important not to wait. Our Texas wrongful death statute of limitations FAQ covers the timeline in more detail.
Speak With an Experienced Texas Wrongful Death Attorney
Knowing who can file is just the first step. The next step is securing accountability so your family doesn’t carry the financial weight of someone else’s mistake.
For more than 25 years, our attorneys have held the people and companies responsible for a loved one’s death accountable, including a $10 million recovery for one grieving family. No amount of money can replace your loved one. But the right outcome can lift the financial weight off your family, so you have room to grieve.
If you’re not sure where your family stands, we’ll walk you through your options at no cost, and you don’t pay us anything unless we win your case. Call us at (972) 960-0000 or schedule a free consultation online.
