Texas Wrongful Death Law, Explained by a Wrongful Death Lawyer in San Antonio

What makes a death a wrongful death in Texas

Section 71.002(b) makes a person liable for damages when an injury that causes a death was caused by “the person’s or his agent’s or servant’s wrongful act, neglect, carelessness, unskillfulness, or default.” In everyday terms, a death is wrongful when someone failed to take the care the law expects of them, or acted deliberately, and the death followed. The words “agent’s or servant’s” are why an employer can answer for a driver or worker who was on the job.

Sections 71.002(c) to (e) add rules for those who own, hire or run vehicles that carry goods or passengers, industrial plants and other machinery. A company in charge of such a vehicle or plant can be liable for its own neglect, its employees’ neglect or an unsafe condition of the machinery it controls, and section 71.007 says private agreements between owners and operators do not release them from that liability.

Section 71.003(a) sets the condition that most often decides a case: the claim exists “only if the individual injured would have been entitled to bring an action for the injury if the individual had lived.” A defence that would have defeated the person’s own injury claim generally defeats the family’s claim too. Section 71.003(b) adds that it does not matter whether the injury happened inside or outside Texas.

Texas also counts an unborn child. Section 71.001 defines an individual to include “an unborn child at every stage of gestation from fertilization until birth”, and death to include the failure to be born alive. Section 71.003(c) lists exceptions, including claims against the mother and lawful medical care.

Who may bring the claim: section 71.004

Section 71.004(a) says the claim is “for the exclusive benefit of the surviving spouse, children, and parents of the deceased.” The word exclusive matters. Those three groups are the only beneficiaries:

• The surviving husband or wife. Section 71.005 lets the defence show a true ceremonial remarriage, but bars it from mentioning a common-law marriage, an extramarital relationship or the surviving spouse’s marital prospects.
• The children, at any age. An adopted child is included: Family Code 162.017 says an adoption creates the parent and child relationship “for all purposes”.
• The parents, including adoptive parents, whatever the age of their son or daughter.

There is no order of priority. Some firms describe the spouse as coming first, then the children, then the parents, but section 71.004(b) says the spouse, children and parents “may bring the action or one or more of those individuals may bring the action for the benefit of all.” Brothers and sisters, grandparents, stepchildren who were never adopted, fiances and other relatives are not named, however close they were to the person who died.

When the executor or administrator steps in

If none of the family has begun the claim “within three calendar months after the death”, section 71.004(c) says the executor or administrator “shall bring and prosecute the action unless requested not to by all those individuals.” Even then, the claim is still brought for the spouse, children and parents, and the money still goes to them, not into the estate.

The survival action: section 71.021

Section 71.021(a) says a claim for personal injury “does not abate because of the death of the injured person or because of the death of a person liable for the injury.” Section 71.021(b) says it “survives to and in favor of the heirs, legal representatives, and estate of the injured person.” This is the claim the person who died would have had for their own injuries, from the moment of injury to the moment of death. It is usually brought by the executor or administrator of the estate.

	Wrongful death claim	Survival action
The law	Civil Practice and Remedies Code 71.001 to 71.012	Civil Practice and Remedies Code 71.021
Whose claim it is	The surviving spouse, children and parents, for their own losses	The person who died, for their own injury, carried on after death
Who brings it	Any or all of the spouse, children and parents; the executor or administrator after three months if none has	Usually the executor or administrator; it survives to the heirs, legal representatives and estate
What it covers	Lost support and care, loss of companionship, mental anguish, loss of inheritance	Medical bills, pain and suffering before death, funeral and burial costs, earnings lost before death
Where the money goes	Directly to the spouse, children and parents, in the shares a jury finds	Into the estate, then to the heirs or under the will
The person’s debts	Not subject to the debts of the deceased (section 71.011)	Part of the estate, so the estate’s creditors may be paid from it
Deadline	Two years from the date of death (section 16.003(b))	Two years from the injury (section 16.003(a)), with up to 12 months more under section 16.062

The difference matters most when the estate has debts and when the heirs are not the same people as the spouse, children and parents. Under Estates Code 201.001, a person who dies without a will and leaves no spouse or children is inherited by the parents, and where only one parent survives, partly by brothers and sisters. So a sibling can share in survival money even though section 71.004 leaves siblings out of the wrongful death claim.

If the person responsible has also died, the claim does not end. Section 71.008 lets the executor or administrator of that person’s estate be made the defendant, and section 71.021(c) says a survival suit “may be instituted and prosecuted as if the liable person were alive.”

What can be recovered

The statute does not list values. Section 71.010(a) says only that the jury “may award damages in an amount proportionate to the injury resulting from the death”, and section 71.010(b) has the jury divide them among the family members who are entitled to recover and alive at the time, “in shares as found by the jury in its verdict.” The kinds of loss Texas courts allow in the family’s claim are:

• Pecuniary loss: the support, services, care, advice and guidance the person would have provided.
• Loss of companionship and society: the love, comfort and companionship the family has lost.
• Mental anguish: the grief and emotional suffering of the spouse, children and parents.
• Loss of inheritance: what the person would probably have saved and left to the family in the normal course of life.

In the survival action the estate may recover the person’s medical expenses, their conscious pain and mental anguish before death, earnings lost between the injury and death, and funeral and burial costs. Damages in the wrongful death claim “are not subject to the debts of the deceased” (section 71.011).

Exemplary damages

Section 71.009 says that when the death is caused by “the wilful act or omission or gross negligence of the defendant, exemplary as well as actual damages may be recovered.” Exemplary damages punish rather than compensate, and Chapter 41 makes them hard to obtain:

• Gross negligence means an act or omission that involves “an extreme degree of risk” and of which the defendant had “actual, subjective awareness” but went ahead “with conscious indifference to the rights, safety, or welfare of others” (section 41.001(11)).
• It must be proved by clear and convincing evidence, and ordinary negligence is not enough (section 41.003(a) and (b)).
• The jury must be unanimous on liability and on the amount (section 41.003(d)).
• Section 41.008(b) limits the amount by a formula based on the economic and noneconomic damages found, but section 41.008(c) removes the limit for conduct described as certain felonies, among them intoxication manslaughter under Penal Code 49.08.

For deaths at work, Labor Code 408.001(b) keeps exemplary damages open to “the surviving spouse or heirs of the body of a deceased employee” whose death was caused by an intentional act or omission or the gross negligence of an employer that carries workers’ compensation, even though compensation is otherwise the exclusive remedy against that employer (section 408.001(a)).

When the person who died shared the fault

Chapter 33, proportionate responsibility, applies to wrongful death claims, and section 33.011 counts the person who died as a claimant, so their conduct is weighed alongside everyone else’s. The jury assigns each person a percentage (section 33.003). The family’s damages are reduced by the percentage given to the person who died (section 33.012), and nothing can be recovered if that percentage is greater than 50 percent (section 33.001). A finding of 20 percent reduces the damages by 20 percent; a finding of 51 percent ends the claim.

Two other parts of Chapter 33 matter. A defendant found more than 50 percent responsible is jointly and severally liable for the damages (section 33.013(b)), so it can be made to pay the whole recoverable amount. And a defendant may ask the court to designate a responsible third party (section 33.004), someone the jury can blame who is not in the suit. Both are reasons to identify every responsible person early.

Deadlines, side by side

What	Time allowed	Where it comes from
Filing a wrongful death suit	Two years; the claim accrues on the death	Civil Practice and Remedies Code 16.003(b)
Filing a survival action	Two years from the injury, suspended for up to 12 months after the death or until an executor or administrator qualifies	Sections 16.003(a) and 16.062
Notice to a city, county or the state	Six months from the incident, or a city charter’s own period; not needed if the government had actual notice of the death	Section 101.101
Executor or administrator must sue if the family has not	After three calendar months	Section 71.004(c)
Applying to probate a will or open an administration	Generally within four years of the death	Estates Code 256.003 and 301.002

Section 16.001 stops the clock while a person entitled to sue is under 18. Whether and how it helps a child’s wrongful death claim depends on the facts, so no family should count on it. The safe course is to treat two years from the death as the deadline for everyone. Our article on the two-year deadline goes through each of these in more detail.

Criminal cases, other states and government defendants

• A criminal case does not block the claim. Section 71.006 says a claim “is not precluded because the death is caused by a felonious act or because there may be a criminal proceeding”. The civil claim does not wait for a conviction, and it does not need one.
• A death outside Texas. Section 71.031 lets the death of a Texas resident caused by an act in another state or country be sued on in Texas, if the law there or in Texas gives a right to sue and the suit is begun within the Texas time limit (for a resident of another state or country, within that place’s time limit as well).
• Government defendants. The Texas Tort Claims Act waives immunity for deaths caused by a government employee’s use of a motor vehicle and by a condition or use of tangible property (section 101.021), but limits the damages (section 101.023), allows no exemplary damages (section 101.024), and requires a suit to be filed in the county where the claim arose (section 101.102).

For what this means in practice, see wrongful death attorney San Antonio for how we handle a claim, and our pages for a fatal car accident lawyer San Antonio and a fatal truck accident lawyer San Antonio for the rules that apply on the road.

This page summarises Texas statutes as published by the Texas Legislature in October 2026. It is general information, not legal advice for any particular death, and laws change. Responsible attorney: Michael Uvalle, LAWBOSS – Harris, Nelsen & Uvalle, PLLC.

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