Texas Personal Injury Law Firm – Buzbee Law Firm – Just Win


What Is the Difference Between Wrongful Death and Survival Action?

When the neglect of another person takes away your loved one, the grief and agony know no bounds. While nothing can comfort the grieving family, taking legal action can bring some financial relief.

Texas law gives people two choices: they can either file a wrongful death claim or go for a survival action. The two lawsuits appear similar but have different features that set the two apart. We discuss further on how a wrongful death claim is different from a survival action.

What Is a Wrongful Death Lawsuit?

Close family of the deceased can seek compensation via a wrongful death claim. This claim recovers both financial and emotional damages for the survivors. It includes pain and suffering costs, present and future income lost, burial expenses, and outstanding medical bills of the victim.

What Is a Survival Action Lawsuit?

A survival action claim deals with the pain and suffering of the person who died. The estate of the decedent receives compensation in this case. It is similar to a damages claim that a victim would have received if they had survived.

What Damages Can You Claim in Texas?

In Texas, you can be compensated for economic, non-economic, and punitive damages. The nature of your claim will define the type of damages you are entitled to.

Damages You Can Claim in a Wrongful Death Case in Texas

Money can never make up for losing someone you love. But it might help your family deal with the physical, emotional, and financial aftermath. Damages for wrongful death include:

  • Loss of support
  • Loss of companionship
  • Mental anguish
  • Emotional agony

Damages You Can Claim in a Survival Action in Texas

A survival action claim in the state of Texas permits the following damages to be claimed in a wrongful death lawsuit:

  • Financial loss of wages
  • Medical treatment expenses
  • Pain and suffering damages

How Are the Proceeds Divided in a Texas Wrongful Death Claim?

Wrongful death claims are distributed amongst the family members. The decision on who will receive how much is decided by the court. The basis is usually the pain and suffering endured by survivors.

Survival action claims are transferred into your deceased family member’s estate. It is then distributed based on the final wishes or will of the member who lost their life.

Who Can File a Wrongful Death Claim in Texas?

Only certain family members can sue for damages under wrongful death. Among them are the following:

  • The spouse
  • The children
  • The parents of the decedent

In cases where there is more than one survivor (for example, a spouse and two children), each survivor has the right to claim. The survivors can join together and file a single lawsuit. They can later split the recovered damage.

In Texas, unfortunately, siblings, aunts and uncles, grandparents, and other family members don’t hold the right to claim wrongful death damages.

Who Can File Under the Texas Survival Statute?

Close relatives may file a survival claim, but this depends on who is named the executor or administrator of the estate. The named person will carry out the will of the deceased.

In the absence of a will, the representative could be a parent, child, or spouse of the person who died. If there are no living heirs, a family member from the extended family or someone chosen by the court may initiate the survival action on behalf of the estate.

The statute of limitations is the same for the two actions. Under Tex. Civ. Prac. & Rem. Code § 16.003(b), you have two years to file a wrongful death lawsuit or survival action. 

How Is a Survival Claim Different From a Wrongful Death Claim?

If the loss of a loved one was caused by the carelessness of a person or entity, the surviving family members may be entitled to financial and emotional recompense. 

While a survival action impllies that relatives of the deceased are eligible to get the financial recompense that the person would have gotten if they had lived, the difference between a survival action and a wrongful death lies in the distribution of the recovered damages.

Let’s consider a case where a husband who is a victim of a drunk driving crash lost his life. In this case, qualifying family members can file a wrongful death claim in Texas. The proceeds go straight to the family in the event of wrongful death, while in the case of survival action, the proceeds would go to the heir of the deceased.

Another example would be an accident in which the person was injured, survived, but later passed away. A survival action can be filed while the victim is alive. The survival statute allows personal injury claims to be filed. This claim can recover treatment expenses and lost wages. The compensation, in this case, can be distributed amongst each beneficiary.

Can You File for Both Wrongful Death and Survival Actions?

In some cases, yes. If the victim of an accident didn’t die right away, the surviving family members can sue for both wrongful death and survival. A wrongful death attorney may help you understand your legal options, gather evidence of loss, and make an informed decision about your future steps.

Call a Texas Wrongful Death Attorney to Discuss Your Case

Has the negligence of someone else resulted in your family member’s death? Were you in the midst of a lawsuit when the grief of death struck you or a financial settlement was on its way? If you answered yes for any of the questions, chances are likely that Texas law permits you to file a lawsuit. 

But the question is, which one? How do you differentiate between wrongful death and survival action? The answer is, you don’t; you trust us to guide you on the right path. Discuss your case with our Texas wrongful death lawyers at the Buzbee Law Firm.

Our attorneys understand that you have one shot at a lawsuit. We leave no stone unturned to get you the fair and adequate compensation you are entitled to. Contact our team now to book a free consultation, and let us take care of the rest.