The Two Claims, Side by Side
| Wrongful Death Claim | Survival Claim | |
|---|---|---|
| Where it comes from | Texas Wrongful Death Act, Civil Practice and Remedies Code Chapter 71 (Sections 71.002, 71.004) | Texas survival statute, Civil Practice and Remedies Code Section 71.021 |
| Who owns it | The surviving spouse, children, and parents — the three groups the statute names | The estate of the person who died, acting through a personal representative or heirs |
| What it compensates | The family’s own losses: lost financial support, lost companionship and society, mental anguish, lost inheritance | What the person endured: conscious pain and suffering before death, medical expenses, funeral and burial expenses |
| Where the recovery goes | Directly to the family beneficiaries, divided in proportion to each one’s loss | Through the estate — distributed by the will, or by Texas intestacy law if there is no will |
The Law, in Plain English
Conscious pain and suffering, and the “instantaneous death” defense
The survival claim compensates what your loved one consciously experienced between the injury and death. So the defense in these cases almost always makes the same argument: death was instantaneous, there was no suffering, the survival claim is worth nothing. Texas law does not require hours of suffering; even a short period of conscious pain and fear is compensable. Proving it is careful, respectful work: the medical examiner’s findings, EMS run reports, 911 recordings, and the accounts of the first people at the scene. It is some of the hardest evidence a family will ever hear about, and it is handled with exactly the care it deserves.
Exemplary damages can attach to both
When the death resulted from gross negligence, an extreme risk the defendant knew about and consciously disregarded, Chapter 41 of the Civil Practice and Remedies Code allows exemplary damages, proven by clear and convincing evidence. That proof comes from the defendant’s own documents and witnesses: what the company knew, and when.
The deadline
Both claims generally must be filed within two years of the death, under Section 16.003 of the Civil Practice and Remedies Code. The exceptions are narrow. The evidence disappears far faster than the statute runs.
How We Build Both Claims
We plead both claims in one lawsuit, and we staff each with the proof it needs: forensic economists and vocational experts to establish a lifetime of lost support for the wrongful death claim; pathology, EMS, and eyewitness evidence for the survival claim; and probate coordination so the estate has a personal representative in place when the survival claim needs one. Every case is prepared for a jury; the full method is on our Wrongful Death hub page.
Go Deeper
The hub — how we prepare these cases for trial.
Wrongful DeathThe three groups, the one-for-all rule, and the three-month rule.
Who Can FileWhen the death happened on the highway.
Fatal Truck AccidentsDeaths inside refineries and plants.
Industrial & PlantDeaths offshore follow a different, federal framework (Jones Act and Death on the High Seas Act), covered in our maritime practice.
Maritime Wrongful Death
