Alexandra W. Payne
The Law Offices of Dean Malone, P.C.
ISSUE 14 | FALL 2023 | CIVIL RIGHTS |
Losing a loved one is never easy. Sometimes that process is complicated by the circumstances of the person’s death. When someone dies because of the negligence or wrongdoing of another, the family’s grieving process unfortunately often intersects with—and is prolonged by—the legal system.
Two of the most common claims that family members file regarding the death of their loved ones are called wrongful death claims and survival action claims. Both claims are brought after someone has died if the death is caused by the wrongful conduct of another.
These claims can arise from many different circumstances, including automobile and workplace accidents, as a result of medical malpractice, and from incidents that occur while a person is in law enforcement custody such as suicides and medical neglect. While these claims share some similarities and are often filed together in the same lawsuit, they are different claims that have different statutory requirements, including who can file them.
Understanding the difference between wrongful death claims and survival action claims may help surviving family members contextualize their rights and legal options, know if and when to contact an attorney, and understand a lawsuit filed on their behalf.
I. When is filing a wrongful death or survival claim appropriate?
Each state has its own wrongful death statutes, which govern claims that can be filed on behalf of the person who has died. In the law, the deceased person is referred to as the “decedent.”¹ A wrongful death action or survival action can be brought where a decedent’s death was caused by another person’s or entity’s wrongful conduct.² Wrongful conduct has a specific meaning in the law and does not include all situations in which a person dies, even if that death is traumatic or seemingly someone else’s fault. There are different standards for establishing that the person’s conduct was “wrongful” depending on the facts and circumstances of the decedent’s death.
For example, the standard for holding someone liable for a death caused in an automobile accident is different than the standard for holding someone liable for a death caused by a doctor in an emergency room.³ Both of those are different than the standard for holding law enforcement accountable for deaths that occur while the decedent was in custody.⁴
In short, this means that conduct that may be considered “wrongful” in one situation may not be considered “wrongful” in another setting for purposes of asserting wrongful death or survival action claims. A lawyer who is familiar with the situation can best advise as to the standard in a given circumstance.
II. What do I get from filing a wrongful death or survival action claim?
Whether any lawsuit is successful depends on numerous case-specific factors, and there is never any guarantee that filing a lawsuit will result in a monetary award.
While both wrongful death claims and survival actions claims will attempt to convert a loss into a dollar amount, monetary damages are handled differently with each claim.
Calculating the value of a case is complex and depends on an endless number of factors. Nothing can ever replace the life lost, but money is unfortunately the primary remedy available in the civil judicial system.
III. Wrongful Death Claims
The purpose of the Texas Wrongful Death Act is to try to compensate certain surviving people for the loss of their relationship to the decedent.⁵
A. Who can bring a wrongful death claim in Texas?
Many states, including Texas, limit who can file a wrongful death lawsuit on behalf of the person who died.⁶ People who can file a wrongful death lawsuit are called “wrongful death beneficiaries.”⁷ Wrongful death beneficiaries in Texas are the decedent’s surviving spouse, children, and parents, meaning only those who are the decedent’s surviving spouse, child, or parent can file a wrongful death claim.⁸ People who shared other types of relationships with the decedent, such as siblings, grandparents, or friends, cannot file this type of claim.
i. What if we weren’t legally married?
In most states, the surviving spouse of a person generally must be the legal spouse, meaning the person must have been legally married to the decedent before their death.⁹ Texas is one of the few states that also recognizes what are referred to as “common-law spouses.”¹⁰ Common-law spouses are couples who were never legally married but who meet certain other requirements, which show that the couple were in a long-term committed relationship akin to a legal marriage.¹¹
Determining whether someone is a common-law spouse is a fact-intensive process and often requires witnesses and evidence be presented to establish each of the requirements. The person who wants to prove the existence of a common-law marriage—in this case, the person who wants to bring a wrongful death claim as a “surviving spouse”—has the burden, or responsibility, of producing sufficient evidence to convince a court that there was a common-law marriage.¹² This can sometimes be challenging to do after one of the people in the relationship has died.
For example, Ashley marries Bradley in January of 2021. Bradly dies a few months later while undergoing surgery. Ashley, as Bradley’s “surviving spouse,” could file a wrongful death claim regarding Bradley’s death.
Instead, consider that Ashley and Bradley lived together for twenty years, have referred to each other as husband and wife, and have three children together. Ashley and Bradley shared all of their finances and all of their friends and family considered them to be married, even though Ashley and Bradly never legally married.
Ashley may be considered a “surviving spouse,” but she would have to prove that to a court, such as by showing the judge bank statements of their joint accounts and bringing friends and family to testify on her behalf. Only if a judge decides that Ashley established the requirements of a “common-law marriage” could Ashley be considered a “surviving spouse” who could then file a wrongful death claim regarding Bradley’s death.
ii. What if I am adopted or a step-child?
A “child” must generally be the person’s legal and biological child.¹³ The definition of “children” does not include step-children, meaning step-children of the decedent cannot file this type of claim.¹⁴
The definition of “child” does, however, include children whom the decedent formally adopted prior to death.¹⁵ Formal adoption is a legal process that ultimately results in a court order, which will establish that the adoptive parent is the legal parent of the adoptive child.¹⁶ The formal adoption process must have been completed, meaning the court must have issued an order finalizing the adoption, before the child’s eighteenth birthday for the child to be considered a “child” under the Texas Wrongful Death Statute.¹⁷
For example, when Emily is fifteen-years-old, her step-father, Wesley, formally adopts her. Five years later, Wesley dies in a workplace accident. In Texas, because Emily was formally adopted by Wesley before her eighteenth birthday, she is a “child” under the Wrongful Death Statute and can, therefore, bring a wrongful death claim for Wesley’s death.
Instead, consider that Emily was adopted by Wesley when she was nineteen-years-old. Even if Wesley raised her and was the primary father figure in Emily’s life for her childhood, Emily still could not file a wrongful death claim because she was not formally adopted by Wesley prior to her eighteenth birthday. In this situation, Emily would not be a “child” under the Wrongful Death Statute and could not file a wrongful death claim.
B. What can I get from filing a wrongful death claim?
Wrongful death claims attempt to compensate wrongful death beneficiaries for the loss of their relationship with the decedent through monetary damages.¹⁸ In other words, the value of the wrongful death beneficiary’s relationship with the decedent will be converted into a dollar amount.
Assuming there is money awarded, such as through a jury verdict or a settlement agreement, the money is split between all the wrongful death beneficiaries of the decedent.¹⁹ If there is a jury verdict, the jury decides how the money will be split.²⁰
For example, if Sally dies, leaving behind her dad, John, and her spouse, Jill, both John, as her parent, and Jill, as her surviving spouse, are considered wrongful death beneficiaries in Texas. If John and Jill decide to file a wrongful death lawsuit regarding Susie’s death, and a jury awards them $100,000, the jury can decide to split that $100,000 in different shares. The jury could award John $60,000 and Jill $40,000.
C. When do I have to file a wrongful death claim?
The right to sue does not last forever. A statute of limitations is a legally determined period of time within which a person must bring certain kinds of legal action.²¹ For wrongful death claims, the statute of limitations is two-years, which typically begins at the death of the decedent.²²
If a lawsuit is not brought within the statute of limitations, the right to bring that lawsuit expires forever.²³ In other words, a wrongful death beneficiary must bring a wrongful death action within two years of the decedent’s death, or they will forever forfeit the right to file that claim about that person’s death.
For example, if Jackson’s child, Jordan, dies in an automobile accident on January 3, 2020, Jackson has until January 3, 2022, to file a wrongful death lawsuit regarding Jordan’s death. If Jackson attempts to file his lawsuit on January 4, 2022, his claims would be rightfully dismissed.
IV. Survival Action Claims
Each state also has its own survival action statutes. The purpose of the Texas Survival Act Statute is to try to compensate the heirs of a decedent for losses that occurred prior to the decedent’s death.²⁴
This can include conscious pain and suffering, medical bills, lost wages, and property damages of the decedent.²⁵ One way to think about survival action claims is to think about what claims the decedent could have asserted themself had they survived.
A. Who can bring a survival action claim in Texas?
Survival action claims can be filed by the decedent’s heirs, legal representatives, and estate.²⁶ An “heir” is a person who is entitled to inherit some part of the decedent’s estate when the decedent dies without a will.²⁷ Dying without a will is called dying “intestate” in the law.²⁸ A person’s surviving spouse, including common-law spouse, is included as an heir.²⁹ Claims filed by the estate are typically filed by an estate administrator.
i. How are heirs determined?
Heirs are determined by a court through a process called an heirship determination.³⁰ A lawyer is required to complete this process.³¹ Determining heirship involves filing an application with the proper court for determination of heirship, conducting an heirship investigation, and ultimately having a hearing to provide the court with evidence on who the decedent’s heirs are.³²
In general, the court will start with the closest relationships and move outward, following statutory guidelines from the State called laws of intestate succession.³³ Under the laws of intestate succession, people who will commonly be considered heirs of a decedent are the decedent’s spouse, children, parents, and siblings.³⁴ Individuals with other familial relationships may also be considered heirs in some situations depending on what other surviving family members are living at the time.³⁵
ii. How long does heirship determination take?
The amount of time it takes to complete the heirship determination process depends on several factors, including the number and complexity of the familial relationships to the decedent and which court determines heirship. Some counties in Texas have dockets that are fuller than other counties, which can make it difficult to get hearing settings or get issues timely heard.
The application for proceeding to declare heirship requires certain information be included in the application, such as a list of all children born to or adopted by the decedent.³⁶ If a decedent had, for example, several children by several different partners, it could take additional time to gather this information.
Sometimes there are complicated relationships between the decedent and the surviving family that can make gathering this information difficult. For example, if the decedent potentially parented one or more children, but he was not listed on the birth certificate as the father, additional steps can be required to prove parentage, such as paternity testing.³⁷
In short, it is difficult to say how long an heirship determination will take because there are case-specific variables that greatly influence the amount of time. On average, heirship determinations with little to no complications take a few months to complete.
iii. What is an estate administrator?
Probate is a legal process through which a court legally recognizes a person’s death.³⁸ During this process, the court will authorize the management and distribution of the decedent’s estate.³⁹ The management and distribution of a decedent’s estate is called “administration,” and the court will appoint an “administrator” to oversee that process.⁴⁰
The administrator, once qualified, is an authorized representative of the estate and the decedent’s heirs.⁴¹ As an authorized representative, the administrator has what is called a “fiduciary duty” to the estate and to the decedent’s heirs.⁴² This means that the administrator must act in the best interest of the estate, not themself.⁴³ The administrator has several tasks that they must complete on behalf of the estate, such as paying estate debts and distributing assets according to court orders.⁴⁴
Family members most often serve as administrators, but it is not necessary for the administrator to have a familial relationship to the decedent.⁴⁵ To be appointed as an administrator in Texas, the person cannot have any felony convictions or otherwise be found unsuitable by the court.⁴⁶
Courts will often also look at whether a person has other types of convictions for what are called crimes of “moral turpitude,” meaning crimes that may reflect poorly on the person’s truthfulness or character.⁴⁷ Some examples of crimes of “moral turpitude” are crimes of violence, stealing, embezzlement, and fraud.⁴⁸ If these convictions occurred a significant period of time before the person seeks to be appointed as administrator, a judge could still choose to approve the person to serve as administrator, but this is usually highly discretionary.
For example, Lisa seeks to be appointed as estate administrator for her mother, Pamela’s estate. However, four years ago, Lisa was caught embezzling funds from an account at work and was convicted. Lisa would likely not be qualified to serve as administrator because of this conviction for a crime that involved “moral turpitude.” Lisa’s brother, Ethan, however, has never been convicted of any crime. Assuming Ethan meets other qualification requirements, Ethan could be appointed to serve as administrator for their mother’s estate.
B. What can I get from filing a survival action claim?
Again, whether any lawsuit is successful depends on numerous case-specific factors, and there is never any guarantee that filing a lawsuit will result in a monetary award. Survival action claims attempt to compensate heirs and the estate of the decedent for losses the decedent suffered prior to their death.⁴⁹ The value of those losses will be converted into a dollar amount.
Assuming there is money awarded, such as through a jury verdict or a settlement agreement, the money goes to the estate of the decedent and is split according to how the court has previously determined in the heirship determination proceeding.⁵⁰ In other words, the heirs do not determine how the money is split, and the money goes to the estate first to be distributed to the heirs.⁵¹
For example, Bryan and Melissa are the surviving children of Lois. Lois’s husband, Marlin, is also still alive. The court issues its final heirship determination order and determines that Marlin is entitled to 50% of Lois’s estate, and Bryan and Melissa are each entitled to 25% of Lois’s estate. If a jury later awards Bryan, Melissa, and Marlin $100,000 in their survival action claim, $100,000 will go to Lois’s estate to be paid out as follows: $50,000 to Marlin, $25,000 to Bryan, and $25,000 to Melissa.
C. When do I have to file a survival action claim?
Like with wrongful death claims, the right to bring a survival action claim does not last forever—the right to file that claim will be forfeited if it is not filed within the statute of limitations.⁵² The statute of limitations for survival action claims is also two years in Texas, which typically begins at the death of the decedent.⁵³
There is one exception to this rule with survival action claims. The statute of limitations for survival action claims can be suspended for up to one year after the decedent’s death.⁵⁴ In effect, this can create up to three years after the decedent’s death where a survival claim may be filed. The clock starts on the additional one year at the decedent’s death and ends once the administrator is appointed.⁵⁵ Once the administrator is appointed, the two-year statute of limitations begins to run.⁵⁶
For example, if Delores died on May 5, 2021, the one-year clock would begin on that date. If Anne was appointed as the administrator of Delores’s estate on January 18, 2022, then the two-year statute of limitations would begin to run on that date. Under the typical two-year statute limitations, a claim would need to be filed no later than May 5, 2023, but because the statute of limitations was suspended, the claim could be filed any time before January 18, 2024.
V. What does this mean for me?
Navigating grief and seeking out legal representation can be difficult to do simultaneously, but to ensure the best chance of success, it is important to contact an attorney as soon as possible.
Every death will not be a valid basis for a lawsuit. Sometimes knowing whether or not a lawsuit may be warranted can provide necessary closure for grieving families. Grief can become more complicated when a person dies because of the wrongful conduct of another, i.e., where a family may have valid wrongful death or survival action claims. Mental health and community resources are vital for navigating grief, but the legal process can also often provide necessary closure for families in complicated grief situations.
This information is intended for educational purposes only and does not constitute legal advice. Always consult an experienced attorney for particularized information and advice.
Suggested Citation: Alexandra W. Payne, Navigating Wrongful Death Claims and Survival Action Claims in Texas, ACCESSIBLE LAW, Fall 2023, at 1.
Sources:
[1] Decedent, Black’s Law Dictionary (11th ed. 2019).
[2] Tex. Civ. Prac. & Rem. Code Ann. § 71.002(b).
[3] Compare Davis v. Bills, 444 S.W.3d 752, 757 (Tex. App.—El Paso 2014, no pet.) (Wrongful Death Act governs wrongful death claims arising from car accidents), with Bangert v. Baylor Coll. of Med., 881 S.W.2d 564, 566 (Tex. App.—Houston [1st Dist.] 1994, no writ) (Medical Liability Act governs wrongful death claims arising from medical malpractice).
[4] See City of Houston v. Nicolai, No. 01-20-00327-CV, 2023 WL 2799067, at *4 (Tex. App.—Houston [1st Dist] Apr. 6, 2023, no pet.) (discussing “official immunity” for government employees).
[5] Davis, 444 S.W.3d at 757 (citing Tex. Civ. Prac. & Rem. Code Ann. § 71.004; Russell v. Ingersoll–Rand Co., 795 S.W.2d 243, 247 (Tex. App.—Houston [1st Dist.] 1990), aff'd, 841 S.W.2d 343 (Tex. 1992)).
[6] Tex. Civ. Prac. & Rem. Code Ann. § 71.004.
[7] White v. Davenport, 398 S.W.3d 802, 806 (Tex. App.—Beaumont 2012), rev’d on other grounds, No. 13-0090, 2013 WL 12501850 (Tex. 2013) (“The damages recoverable are those suffered by the wrongful death beneficiaries.”); Beneficiary, Black’s Law Dictionary (11th ed. 2019).
[8] Tex. Civ. Prac. & Rem. Code Ann. § 71.004(a).
[9] 22A Am. Jur. 2d Death § 78 (2023).
[10] Tex. Fam. Code Ann. § 1.91(a)(2) (establishing that the elements to establish a common-law marriage in Texas are: (1) that the couple agreed to be married; (2) after their agreement, the couple lived together in Texas as husband and wife; and (3) the couple represented to others that they were married.).
[11] Id.
[12] White v. State Farm Mut. Auto. Ins. Co., 907 F. Supp. 1012, 1016 (E.D. Tex. 1995) (“The existence of a common-law marriage is a question of fact, with the burden of proof being on the party seeking to establish the marriage.”) (citing Weaver v. State, 855 S.W.2d 116 (Tex. App.—Houston [14th Dist.] 1993, no pet.)).
[13] See Pluet v. Frasier, 355 F.3d 381, 384 (5th Cir. 2004) (“To recover under the TWDS, an illegitimate child must establish biological paternity by clear and convincing evidence.”); Brown v. Edwards Transfer Co., 764 S.W.2d 220, 223 (Tex. 1988) (finding that there was “some evidence to support the jury’s finding that the children were the biological children of [decedent]” and allowing those children to assert wrongful death claims).
[14] Miles v. Ford Motor Co., 922 S.W.2d 572, 590 (Tex. App.—Texarkana 1996), aff’d in part, 967 S.W.2d 377 (Tex. 1998).
[15] See Transp. Ins. Co. v. Faircloth, 898 S.W.2d 269, 275 (Tex. 1995) (“[O]nly biological or legally-adopted children of the decedent have standing” under the Act.).
[16] See Tex. Fam. Code Ann. §§ 162.001–162.026.
[17] Clayton v. U.S. Xpress, Inc., 538 F. Supp. 3d 707, 711 (N.D. Tex. 2021) (distinguishing adoption as a minor and adoption as an adult, holding that adoption as an adult did not make a person an heir of the decedent because there was never any termination of the biological parent’s rights under Texas Family Code).
[18] Davis v. Bills, 444 S.W.3d 752, 757 (Tex. App.—El Paso 2014, no pet.) (citing Tex. Civ. Prac. & Rem. Code Ann. § 71.004; Russell v. Ingersoll–Rand Co., 795 S.W.2d 243, 247 (Tex. App.—Houston [1st Dist.] 1990), aff'd, 841 S.W.2d 343 (Tex. 1992)).
[19] Tex. Civ. Prac. & Rem. Code Ann. § 71.010(b).
[20] Id.
[21] Statute of Limitations, Black’s Law Dictionary (11th ed. 2019).
[22] Tex. Civ. Prac. & Rem. Code Ann. § 16.003(b); Trapnell v. Sysco Food Servs., Inc., 850 S.W.2d 529, 550 (Tex. App.—Corpus Christi–Edinburg 1992), aff'd, 890 S.W.2d 796 (Tex. 1994) (“Thus, the rule now is that a wrongful death or survival claim accrues, at the latest, at the time of death.”); Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 352 (Tex. 1990) (holding that the cause of action for injuries resulting in wrongful death accrues upon death, not upon discovery of the death).
[23] Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a).
[24] See Tex. Civ. Prac. & Rem. Code Ann. § 71.021.
[25] Cunningham v. Haroona, 382 S.W.3d 492, 507 (Tex. App.—Fort Worth 2012, no pet.); see also 1 Tex. Jur. 3d Actions § 222 (2023).
[26] Tex. Civ. Prac. & Rem. Code Ann. § 71.021(b).
[27] Tex. Est. Code Ann. § 22.015.
[28] Intestate, Black’s Law Dictionary (11th ed. 2019).
[29] Tex. Est. Code Ann. § 22.015.
[30] Tex. Est. Code Ann. § 31.001(3).
[31] Under Texas law, only a licensed attorney can represent the interests of a third-party, including in probate matters. See, e.g., In re Guetersloh, 326 S.W.3d 737, 739 (Tex. App.—Amarillo 2010, no pet.) (citing Steele v. McDonald, 202 S.W.3d 926, 928–29 (Tex. App.—Waco 2006, no pet.)); see also Tex. Gov’t Code Ann. § 81.102.
[32] Tex. Est. Code Ann. §§ 202.001–202.009.
[33] Tex. Est. Code Ann. § 201.001.
[34] Id.
[35] Tex. Est. Code Ann. § 201.101.
[36] Tex. Est. Code Ann. § 202.005(4).
[37] Tex. Est. Code Ann. § 204.051(a).
[38] See Tex. Est. Code Ann. § 31.001; Craig Hopper et. al., O’Connor’s Tex. Probate Law Handbook, at Ch. 1-A § 2 (2024 ed.).
[39] See Tex. Est. Code Ann. § 301.051.
[40] Tex. Est. Code Ann. §§ 301.051, 304.001(a).
[41] Tex. Est. Code Ann. § 305.002.
[42] Tex. Est. Code Ann. §§ 351.001, 351.101; Ali v. Smith, 554 S.W.3d 755, 762 (Tex. App. 2018) (“The fiduciary duty that an executor or administrator owes to the estate is derived from the statutes and common law.”); see Humane Soc’y of Austin & Travis Cnty. v. Austin Nat’l Bank, 531 S.W.2d 574, 577 (Tex. 1975) (“As trustee of the property of the estate, the executor is subject to the high fiduciary standards applicable to all trustees.”).
[43] Id.
[44] See, e.g., Tex. Est. Code Ann. § 351.051.
[45] See Tex. Est. Code Ann. § 301.051.
[46] Tex. Est. Code Ann. § 304.003(a)(2), (5).
[47] Duncan v. Board of Disciplinary Appeals, 898 S.W.2d 759, 761 (Tex. 1995) (defining crimes of moral turpitude as “those that involve dishonesty, fraud, deceit, misrepresentation…”).
[48] Id.
[49] See Tex. Civ. Prac. & Rem. Code Ann. § 71.021.
[50] Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 345 (Tex. 1992).
[51] Id.
[52] Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a).
[53] Tex. Civ. Prac. & Rem. Code Ann. § 16.003(b); Trapnell v. Sysco Food Servs., Inc., 850 S.W.2d 529, 550 (Tex. App.—Corpus Christi–Edinburg 1992), aff'd, 890 S.W.2d 796 (Tex. 1994) (“Thus, the rule now is that a wrongful death or survival claim accrues, at the latest, at the time of death.”); Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 352 (Tex. 1990) (holding that the cause of action for injuries resulting in wrongful death accrues upon death, not upon discovery of the death).
[54] Tex. Civ. Prac. & Rem. Code Ann. § 16.062(a).
[55] Tex. Civ. Prac. & Rem. Code Ann. § 16.062(b).
[56] Tex. Civ. Prac. & Rem. Code Ann. § 16.062(b).
