Tex. Civ. Prac. & Rem. Code §§ 71.002, 71.004, 71.009, 71.021; § 16.003(b)
Wrongful death and survival claims in Texas — who may sue, and the three-month rule
A claim in Texas district and county courts · Last verified August 26, 2026
Texas splits a death case in two. The wrongful death claim belongs to the family and compensates their losses. The survival claim belongs to the estate and carries the claim the decedent would have had. They are filed together, they run on the same two-year clock, and they pay different people for different things.
The beneficiary list is exclusive and shorter than most families expect. Surviving spouse, children and parents. No siblings, no grandchildren, no fiancée.
What the claims are
Someone died because of another person's wrongful act. The family sues for what the death cost them; the estate sues for what the decedent went through before dying.
Where the rights come from
Statute, in both cases. Neither claim existed at common law — a personal injury claim died with the injured person. Chapter 71 of the Civil Practice and Remedies Code creates both.
What a plaintiff has to prove
Wrongful death — CPRC § 71.002
- A person died.
- The death was caused by another's wrongful act, neglect, carelessness, unskillfulness or default.
- The decedent would have been entitled to bring an action for the injury had they lived (§ 71.003).
- The plaintiff is a statutory beneficiary and suffered damages.
The third element carries the defenses with it. If the decedent's own claim would have been barred — by limitations, by a release, by comparative fault above 50 percent — the wrongful death claim is barred too.
Survival — CPRC § 71.021
- The decedent had a cause of action for personal injury before death.
- That claim survives to the heirs, legal representatives and estate.
- Proof of the underlying tort, plus the decedent's own pre-death damages.
Who may sue — and who may not
CPRC § 71.004(a) makes the wrongful death action "for the exclusive benefit of the surviving spouse, children, and parents of the deceased."
- Adopted children and adoptive parents are included on the same terms.
- Siblings cannot sue, whatever their relationship to the decedent.
- Grandparents and grandchildren cannot sue.
- An unmarried partner cannot sue, unless the relationship was a valid informal marriage.
Any one beneficiary may bring the action for the benefit of all. And under § 71.004(c), if none of them has begun the action within three calendar months of the death, the executor or administrator must bring it — unless all the beneficiaries ask that it not be brought.
The survival claim belongs to the estate and is brought by the personal representative, or by the heirs where no administration is pending.
How long you have to file
Two years. CPRC § 16.003(b) sets the wrongful death period and states that the cause of action accrues on the death of the injured person — not on the date of the injury.
The survival claim runs on the limitations period of the underlying tort, generally two years from the injury under § 16.003(a).
Where the underlying claim is a health care liability claim, chapter 74's two-year period and 10-year repose govern instead, along with its notice and expert report requirements.
What has to happen before you file
Nothing under chapter 71 itself. If the underlying claim carries pre-suit requirements — a health care liability notice, a Tort Claims Act notice against a governmental unit — those apply.
What the claims pay
Wrongful death compensates the beneficiaries for their own losses:
- Pecuniary loss — the care, maintenance, support, services, advice and counsel the decedent would have provided.
- Loss of companionship and society.
- Mental anguish from the death.
- Loss of inheritance, the value of what the decedent would have accumulated and left.
Survival compensates the estate for the decedent's own losses:
- Conscious pain and mental anguish before death.
- Medical expenses incurred.
- Lost earnings between injury and death.
- Funeral and burial expenses.
Exemplary damages are available under CPRC § 71.009 where the death resulted from a wilful act or omission or from gross negligence. The Texas Constitution exempts wrongful death exemplary damages from legislative limitation, which is why the chapter 41 cap analysis differs here.
No attorney's fees under either claim.
Common defenses
- The decedent's own comparative responsibility, barring recovery above 50 percent under CPRC § 33.001 and reducing it below that.
- Any defense that would have barred the decedent's claim — release, limitations, waiver, assumption of risk.
- Lack of standing. The plaintiff is a sibling, a grandchild, or an unmarried partner.
- Limitations, running from death for wrongful death and from injury for survival.
- The underlying tort was not proved.
What people get wrong
Siblings cannot bring a wrongful death claim in Texas. This is the most painful surprise in this area of law, and the statute is explicit.
The two claims pay different people. Wrongful death money goes to the beneficiaries directly. Survival money is an estate asset — it passes under the will or by intestacy and is exposed to the decedent's creditors.
The clock starts at death, not at the injury. For wrongful death. The survival claim runs from the injury, which can make the two deadlines different dates.
Three months matters. If no beneficiary files within three calendar months of the death, the executor or administrator is required to.
Where it came from
Both claims are creatures of statute because the common law had neither. Under the old rule a tortfeasor was better off if the victim died — the claim died too, and the family had none of its own.
England changed that with Lord Campbell's Act in 1846, creating a claim for the family. Texas adopted its own version in 1860, and the survival statute followed to preserve the decedent's claim for the estate. The structure of chapter 71 — two claims, two sets of claimants, two measures of damages — is a direct inheritance from that fix.
The exclusive beneficiary list has been amended over the years but has never been extended to siblings.
Common questions
Who can file a wrongful death lawsuit in Texas?
Only the surviving spouse, children and parents of the deceased. Any one of them may file for the benefit of all.
Can siblings sue for wrongful death?
No. The statutory list is exclusive.
How long do we have to file?
Two years, running from the date of death for the wrongful death claim and from the injury for the survival claim.
What is the difference between wrongful death and survival?
Wrongful death compensates the family for their losses. Survival compensates the estate for what the decedent suffered before dying.
Can we recover attorney's fees?
No. Neither claim carries a fee statute.
Can we get punitive damages?
Yes, where the death resulted from a wilful act or omission or from gross negligence.
What if nobody files right away?
If no beneficiary has begun the action within three calendar months of the death, the executor or administrator must bring it unless all the beneficiaries request otherwise.