Most people have heard of wrongful death claims though few have reason to file one. Survival actions are a separate but related type of claim that, in some cases, can also be filed after someone dies. These are different because of who can file them, but they can sometimes be filed in the same lawsuit as a wrongful death claim.

If you have questions about whether you have the right to file a survival action, speak with a Dallas wrongful death lawyer at the Reyes Browne Reilley Law Firm. The loss of a loved one is usually a time of uncertainty, but we can help clarify the legal process.

Wrongful death v. Survival action

If a personal injury has taken the life of a loved one, you may have the option to file a lawsuit that includes a wrongful death claim and/or a survival claim. These two claims both allege that a defendant’s negligence or intentional wrongdoing caused the death of the loved one– but the rights involved are different.

Wrongful death claims in Texas assert the rights of the family of the deceased for their losses. A surviving spouse or children may file the claim to seek compensation for the impact the death has had on them– such as emotional pain, lost inheritance, loss of household services the deceased provided, and loss of their guidance, support, and counsel.

By contrast, a survival claim “survives” the death. For example, if your family member is involved in a car accident or a truck accident and does not die immediately, the claim may involve their physical and emotional pain and suffering that occurred between the accident and their death. The deceased’s estate brings a survival claim, and it can also include the cost of medical treatment and burial expenses. Survival action damages then go to the estate and may be distributed to the family as its heirs.

Texas survival statute

Texas law determines who may file a survival action and when. It allows the estate, legal representative, or heirs to file. If the deceased person has no legal beneficiary, relatives may jointly file the claim. To win, they must prove that:

  • The defendant’s negligence or intentional wrongdoing caused the death
  • The defendant’s actions caused pain and suffering to the deceased before their death
  • If the deceased person had survived, they would have had the right to sue the defendant for compensation for their suffering

A survival action usually needs to be filed within two years of the date of the injury. It is important to note that this may not be the same date as the death. Exceptions affecting the deadline to file a lawsuit can be complex, so discuss your case with an experienced wrongful death lawyer to be sure you understand how the statute of limitations applies in your case.

Can I file both a wrongful death claim and a survival claim?

In some situations, both causes of action may be combined in one lawsuit. However, there are some factors to take into consideration.

Relationship to the deceased – While the plaintiffs in each type of claim are different– the spouse or children in a wrongful death claim versus the estate or legal representative in a survival action– they may ultimately be the same people.

The estate is a separate legal entity, but the beneficiaries are often the surviving spouse or children. Whether the deceased person’s surviving spouse or children are also the heirs of the estate will play a role in the type of claim to raise.

Types of damage – If the deceased person died immediately, without pain and suffering and without incurring medical expenses, there might not be substantial grounds for a survival claim. If, however, the loved one suffered for minutes or months, that experience may trigger a claim that survives their death.

Length of time passed – The filing deadline for a survival claim generally begins running before the deadline for wrongful death. If its limitations period has run, there may still be time to file a wrongful death claim.

There are a lot of considerations that go into filing a lawsuit. Speak with an attorney about whether a wrongful death or survival claim or both, is appropriate in your situation.

Speak with a Dallas lawyer about your case

If you have experienced the loss of a loved one, talk to a Dallas personal injury lawyer about whether you have the right to file a survival action or a wrongful death case. Deadlines begin to run immediately, so it is never too soon to call us at the Reyes Browne Reilley Law Firm. Consultations with our skilled and compassionate team are free and confidential.

Additional Texas survival claim resources:

  1. Texas Constitution and Statutes, CHAPTER 71. WRONGFUL DEATH;  SURVIVAL;  INJURIES OCCURRING OUT OF STATE, https://statutes.capitol.texas.gov/Docs/CP/htm/CP.71.htm