Texas has two distinct causes of action that can be brought after a fatality caused by someone else’s negligent or wrongful act.

Survival actions and wrongful death actions address different losses and are brought by separate parties. However, they are often brought together to fully compensate the deceased’s heirs and family members for their losses.

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Survival and Wrongful Death

In the system of English common law, a person’s legal claims disappeared in the case of his or her death. This doctrine unfairly prevented family members from seeking compensation from the party responsible for the death.

That meant negligent parties were better off if victims died rather than survived, because they were financially liable for injuries but not fatalities.

This doctrine survived in the U.S. after the nation’s founding. However, state legislatures recognized its unfairness and created two new types of actions.

The first is called a survival action because a deceased person’s legal claims “survive” his or her death. This action allowed the deceased person’s estate to file a personal injury lawsuit against the responsible party.

The second cause of action is called a wrongful death claim and has both financial and non-financial consequences. A wrongful death action recognizes that a family’s losses can be emotional—a type of damage that’s difficult to measure—and it imposes liability for them upon the party at fault.

Texas Survival and Wrongful Death Statutes

Texas has separate laws addressing survival actions and wrongful death claims. The state’s survival statute holds that causes of action for personal injuries survive the death of the injured person and the death of the party at fault. In other words, a personal injury lawsuit can be brought even if the victim dies or both the victim and the individual responsible for that fatality dies.

The statute requires the plaintiff’s estate to have a valid claim. That means the estate must prove that the other party acted negligently or wrongfully to recover compensation.

The state’s wrongful death statute holds that a party is liable for losses resulting from a death caused by a wrongful act, neglect, or default.

These terms mean that if the victim had a personal injury case against the party, their family has a wrongful death case against them if the injury resulted in their death. Some examples where a wrongful death case might arise include fatal car accidents, defective products, and medical errors or devices.

Similarities Between Wrongful Death and Survival

Survival and wrongful death claims are often brought together because they require the same proof. Specifically, the party bringing the claim must prove the defendant is legally liable.

Legal liability for a fatal injury could result from intentional acts (such as a battery occurring in a road rage incident), negligence (such as carelessness by a surgeon), or from strict liability imposed on manufacturers of consumer products.

Regardless of the legal theory used, the evidence proving the party’s liability for the injury will be the same in both survival actions and wrongful deaths.

Differences Between Wrongful Death and Survival

Survival actions and wrongful death can also be brought by different parties. A survival action belongs to the deceased person’s estate and can only be brought by its executor or administrator. Any compensation recovered in the action gets added to the estate and distributed to the person’s heirs.

A wrongful death action belongs to the person’s surviving spouse, children, or parents. Any of these parties can bring the action on behalf of the entire group. They do not need to act together to bring the claim.

If none of them wants to participate, the estate can still bring the claim on their behalf. However, any compensation recovered in a wrongful death case goes to the spouse, children, or parents rather than the estate.

Another difference between the two is the resulting compensation. A survival action can pay for the medical costs, pain, and suffering from the fatal injury. A wrongful death action compensates the family for the loss of financial support, burial and funeral expenses, grief, and mental anguish from the loss of their loved one.

Wrongful Death vs. Survival Actions

Although these actions are different, most families do not need to choose between them. Generally, a wrongful death lawyer will help a victim’s family and estate prepare and file the claims together. This strategy allows the family and estates to cooperate, thereby reducing legal fees and making the case easier to file and more efficient.