Texas Wrongful Death Statute: Who Can Sue, Damages, and Deadline

The Texas wrongful death statute lets a person’s surviving spouse, children, or parents sue whoever caused the death through wrongful conduct, negligence, carelessness, or lack of skill, and it gives them two years from the date of death to file.¹²³ Recovery covers both the family’s financial losses and their emotional harm, and in cases involving especially bad conduct, punitive damages as well. Everything else about the statute — who qualifies, what has to be proven, how much can be recovered — turns on those basics.

Who Can Sue

Only three categories of family qualify: the surviving spouse, the children, and the parents of the deceased.¹ Siblings, grandparents, cousins, and other relatives cannot file, no matter how close they were to the deceased. Any one of the eligible family members can bring the case on behalf of all of them.

Legally adopted children have the same standing as biological children. An adopted child can sue over an adoptive parent’s death, and an adoptive parent can sue over an adopted child’s. But when adoption has terminated a biological parent’s rights, the legal relationship is gone: neither side has standing to file for the other.

If none of the eligible family members file within three months of the death, the estate’s executor or administrator has to step in and pursue the claim — unless every eligible family member asks them not to.¹ That three-month mark decides whether the family or the estate ends up controlling the litigation.

Common-Law Spouses

A common-law spouse can file, but only after establishing a valid informal marriage. Texas requires proof of three things existing at the same time: an agreement to be married, cohabitation in Texas as spouses, and holding out to others as married.⁴ If more than two years have passed since separation without anyone filing to prove the marriage, the law presumes no agreement to marry ever existed, and the surviving partner has to rebut that. When the defense contests the marriage, expect the court to demand substantial evidence before the wrongful death claim can go forward.

The Two-Year Deadline

The lawsuit has to be filed within two years of the date of death, not the date of the underlying injury.³ If a patient is injured by medical negligence in January and dies from that injury in November, the clock starts in November. Once the two years pass, courts almost always dismiss the case regardless of how strong the underlying facts are.

There is one meaningful exception. When the eligible claimant is a minor, the statute is tolled until the child turns 18, and the two-year clock then runs to age 20. That tolling only matters when no adult claimant is available or willing to file, because a parent, guardian, or other eligible adult can bring the claim on the minor’s behalf at any time before the minor reaches adulthood.

What Must Be Proven

A wrongful death plaintiff has to show the defendant owed a duty of care, breached it, and that the breach caused the fatal injury. The statute covers deaths caused by wrongful conduct, negligence, carelessness, or lack of skill.² Evidence typically comes from medical records, accident reports, expert testimony, and witness statements; in fatal crashes, police reports, traffic camera footage, and toxicology results carry a lot of weight, and in premises cases, maintenance and inspection records often decide whether the owner knew about the hazard.

Two contexts add rules on top of the ordinary negligence framework.

Medical Malpractice Deaths

When the underlying claim is against a health care provider, the plaintiff has to serve an expert report on each defendant no later than 120 days after that defendant files their initial answer.⁵ The 120 days runs from each defendant’s answer, not from the date the lawsuit was filed. The report has to lay out the applicable standard of care, how the provider fell short, and how that failure caused the death. Missing the deadline typically means dismissal.

Workplace Fatalities

Texas is the only state that does not require private employers to carry workers’ compensation. If the employer opted out (a “nonsubscriber”), the family can sue for negligence and the employer loses key defenses, including any argument that the worker’s own carelessness contributed.

If the employer does carry workers’ compensation, the exclusive-remedy rule usually limits the family to statutory death benefits.⁶ The exception that survives is exemplary damages: the family can still pursue those when an intentional act or gross negligence by the employer caused the death.p>

Comparative Fault Can Reduce or Bar Recovery

Texas follows a modified comparative fault rule. The family can recover as long as the deceased was not more than 50% responsible for the incident.⁷ At 51% or more, recovery is zero. Below that, damages drop by the deceased’s percentage of fault: on a $1,000,000 verdict with the deceased 30% at fault, the family takes $700,000. Defendants routinely push comparative fault to shrink their exposure, which is why preserving physical evidence and getting witness statements early tends to matter.

What the Family Can Recover

Wrongful death damages come in three buckets, and the jury awards them in proportion to the injury the death caused each claimant.⁸

Economic Damages

Economic damages cover the family’s out-of-pocket and financial losses. The largest piece is usually lost income and financial support, calculated by an economist or vocational expert over the deceased’s remaining working life, with adjustments for inflation and expected career growth. Funeral and burial costs are recoverable, as is the value of household services the deceased provided.

Non-Economic Damages

Non-economic damages compensate the losses that do not have a receipt attached: loss of companionship, comfort, and guidance, plus the surviving family’s mental anguish. The claimant’s relationship to the deceased shapes the number. A young child who loses a parent typically recovers more for loss of guidance than an adult child would, because the deprivation stretches over more of the child’s life.

Punitive Damages and the Cap

When the death resulted from a willful act, omission, or gross negligence, the family may recover exemplary (punitive) damages.⁹ The plaintiff has to prove fraud, malice, or gross negligence by clear and convincing evidence, a higher bar than the ordinary preponderance standard, and the jury must be unanimous on both liability for exemplary damages and the amount.¹⁰

Punitive damages are capped. The ceiling is the greater of $200,000 or two times the economic damages plus the noneconomic damages (with the noneconomic portion counted only up to $750,000).¹¹ On a verdict of $500,000 economic and $400,000 noneconomic, the punitive cap works out to $1,400,000 (two times $500,000, plus $400,000). The $200,000 floor keeps meaningful punitive awards possible even in smaller cases.

The Survival Action Is a Separate Claim

The wrongful death statute is one of two claims Texas families typically pursue after a death. The other is the survival action, and the distinction matters because the two compensate different people for different losses. The wrongful death claim belongs to the family and covers what they lost. The survival action belongs to the estate and recovers what the deceased could have sued for if they had lived, including pain and suffering between injury and death, pre-death medical expenses, and lost wages during that window.¹² Families frequently file both at once.

How the Award Is Divided

Wrongful death damages do not pass through the estate and are not controlled by a will. The jury divides the award among the eligible claimants — spouse, children, and parents — in the proportions the jury decides, based on each person’s relationship to the deceased and each person’s losses.⁸ Only claimants who are alive at the verdict share in the award.

Because wrongful death damages are not subject to the deceased’s debts, creditors of the deceased cannot reach the family’s recovery.¹³ That protection is specific to wrongful death; survival action proceeds flow through the estate and are exposed to creditors. When a settlement involves minor children, the court has to approve the terms and the distribution.

Taxes and Medicare Reimbursement

Most wrongful death compensation is not taxable income. Damages received on account of a personal physical injury — lost wages, funeral costs, and loss of companionship among them — are excluded from federal gross income. Punitive damages are generally taxable. A narrow exception exists when a state’s wrongful death statute allows only punitive damages, but Texas allows both compensatory and punitive damages, so that exception typically will not help a Texas family.¹⁴

If Medicare paid for treatment tied to the fatal injury, it can pursue reimbursement out of the recovery. Because Texas’s survival action allows recovery of the deceased’s medical expenses, Medicare can reach the entire recovery even when the family did not specifically request medical expenses in the settlement.¹⁵ Any conditional payments should be resolved before a settlement is finalized.

1
State of Texas. Texas Civil Practice and Remedies Code 71.004 – Benefitting From and Bringing Action
2
State of Texas. Texas Civil Practice and Remedies Code 71.002 – Cause of Action
3
State of Texas. Texas Civil Practice and Remedies Code 16.003 – Two-Year Limitations Period
4
State of Texas. Texas Family Code 2.401 – Proof of Informal Marriage
5
State of Texas. Texas Civil Practice and Remedies Code 74.351 – Expert Report
6
State of Texas. Texas Labor Code 408.001 – Exclusive Remedy and Exemplary Damages
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State of Texas. Texas Civil Practice and Remedies Code 33.001 – Proportionate Responsibility
8
State of Texas. Texas Civil Practice and Remedies Code 71.010 – Award and Apportionment of Damages
9
State of Texas. Texas Civil Practice and Remedies Code 71.009 – Exemplary Damages
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State of Texas. Texas Civil Practice and Remedies Code 41.003 – Standards for Recovery of Exemplary Damages
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State of Texas. Texas Civil Practice and Remedies Code 41.008 – Limitation on Amount of Recovery
12
State of Texas. Texas Civil Practice and Remedies Code 71.021 – Survival of Cause of Action
13
State of Texas. Texas Civil Practice and Remedies Code 71.011 – Damages Not Subject to Debts
14
Internal Revenue Service. Tax Implications of Settlements and Judgments
15
Centers for Medicare & Medicaid Services. Medicare Secondary Payer Manual – Chapter 7 – MSP Recovery