Does Shared Fault Dismiss a Wrongful Death Claim in Texas?

The call from the insurance adjuster came a week after you buried your husband. Instead of condolences, the adjuster wanted to talk about how fast he was driving on the Southwest Freeway the night of the crash. He mentioned the word “fault,” and now you are afraid that means your family will walk away with nothing.

Partial Fault Does Not Dismiss Your Claim

In fatal car accident cases, the at-fault driver’s insurer often tries to shift part of the blame onto the person who died, but rest assured that if an adjuster says that any amount of fault will automatically dismiss your case, then they are just fearmongering you.

This is where the 51 percent rule for injury claims comes into play. Your family can still file a wrongful death claim if your loved one was 50% or less at fault for the crash.

Texas follows a modified comparative fault rule under the Texas Civil Practice and Remedies Code § 33.001. This law prohibits recovery only if the jury finds your loved one more than 50% responsible for the crash. If your loved one is found to be 50% or less at fault, then your claim can still be filed, and your total recovery is reduced by your loved one’s percentage of fault.

Who Can File a Wrongful Death Claim?

The Texas Wrongful Death Act states that only three parties to file a wrongful death claim on behalf of the deceased:

1. The surviving spouse
2. The children of the deceased
3. The parents of the deceased

Under Texas Civil Practice and Remedies Code § 71.004, those family members can file the claim together, or one relative can file the claim on behalf of everyone. Siblings, cousins, and unmarried partners usually cannot file a claim on their own. Our overview of Texas wrongful death claims can help you understand which of your family members can file a claim.

No matter who files the claim, they must adhere to the deadline. Texas generally gives families two years from the date of death to file a claim. Our guide on the wrongful death statute of limitations covers the exceptions to this rule.

How Fault Gets Assigned in Your Case

A jury decides how much fault belongs to each person involved, including your loved one. Under Texas Civil Practice and Remedies Code § 33.003, the jury assigns a percentage of fault to each party based on the evidence.

To argue that your loved one had a higher percentage of fault, insurers and defense lawyers will consult the crash report, witness statements, phone records, and toxicology results. They will also look at whether your loved one wore a seatbelt, which is allowed as evidence by Texas courts. A Texas Supreme Court ruling on seatbelt evidence determined that not wearing a seatbelt is an important determiner when a jury divides fault.

The stronger your own evidence is, the harder it will be to inflate your loved one’s percentage of fault.

How Shared Fault Reduces Your Recovery

Once the jury determines a percentage of fault, your family’s award is reduced by that percentage. For example, if the jury finds your loved one 20%, you keep 80% of the total award.

Under Texas Civil Practice and Remedies Code § 33.012, the court subtracts your loved one’s percentage of fault before it finalizes the judgment. For example, if a jury values your family’s loss at $1 million, but they find your loved one 30% responsible for the crash, then your recovery is reduced to $700,000. If your loved one is found more than 50% responsible for the crash, then you collect nothing.

Reviewing how the insurer calculated a fault percentage can reveal whether this reduction is valid.

Fault Allegations from Insurance Adjusters

When an adjuster tells you that your loved one caused the crash, that is just their opinion, not a legal decision. Adjusters often question fault before the investigation is complete to lower your expectations and extend a lower offer than your claim is actually worth.

Remember, an adjuster’s opinion carries no legal weight by itself. A jury determines the real percentage of fault, and these two numbers can be vastly different. Recognizing this early allegation as a negotiation tactic can change your family’s response to a low settlement offer.

Work with an Attorney on Your Wrongful Death Claim in Texas

Losing someone you love and then hearing that they caused their own death can make the pain even worse. If an insurance company is telling you this, you should not have to face it alone.

Angel Reyes & Associates has guided Texas families through wrongful death claims for over 30 years, including cases where insurers blamed the deceased. We work on contingency, so you pay nothing unless we win, and your first consultation is free.

Our results include more than $1 billion recovered for clients, and we have office locations across Texas. When you are ready, schedule a free consultation to discuss your options.

Past results do not guarantee future outcomes.