Roderick C. Lopez | January 25, 2024 | Wrongful Death
Someone who suffers an injury caused by someone else’s misconduct can generally file a personal injury claim seeking fair compensation. But what happens if the victim dies from their injuries, either at the scene of the accident or later?
The Texas wrongful death statute creates a wrongful death cause of action that allows compensation under these circumstances. A similar lawsuit, known as a survival action, is also available.
What’s the Difference Between a Wrongful Death Claim and a Homicide Charge?
A homicide charge is a criminal action that the prosecutor initiates (and must prove ‘beyond a reasonable doubt’). It does not generate compensation unless the court orders the defendant to pay restitution. Even then, the amount is typically modest.
A wrongful death claim is a civil action that a private party files and must prove by ‘a preponderance of the evidence.’ ‘A preponderance of the evidence’ is a much more lenient standard of proof than ‘beyond a reasonable doubt.’
In other words, it is easier to win. In fact, because of the difference in these standards of proof, a wrongful death claim may still succeed even if the defendant is acquitted in criminal court.
How Do You Prove a Texas Wrongful Death Claim?
Following is a list of the facts (elements) that you have to prove to win a Texas wrongful death claim:
- The defendant committed a wrongful act or omission—specifically negligence or other wrongful act;
- The defendant’s conduct would have justified a personal injury judgment in favor of the victim if the victim had not died from their injuries;
- The defendant’s wrongful act or omission was the actual cause of the victim’s death; and
- The victim’s death was a foreseeable consequence of the defendant’s wrongful behavior.
You have to prove all of the foregoing elements to win your claim. Missing even one means defeat.
Who Has the Right To File a Texas Wrongful Death Claim?
In Texas, the deceased person’s surviving spouse, children, and parents, or any one or more of these parties can file the claim on behalf of all of them. If no one files the lawsuit within three months after the date of the victim’s death, the victim’s estate executor (personal representative) must file the lawsuit. The executor need not file the lawsuit if all of the aforementioned family members request not to file one.
If the victim had a last will and testament, it probably names the personal representative. If not, the probate court will name a personal representative. Either way, the personal representative is usually a close relative of the victim.
What’s the Difference Between a Wrongful Death Claim and a Survival Action?
A wrongful death claim compensates surviving family members for their losses arising from the victim’s death. A survival action, by contrast, compensates the victim’s probate estate for the victim’s personal injuries. Either the estate executor or surviving relatives can file a survival action lawsuit.
Wrongful Death Damages
A wrongful death claim generates the following damages. They go straight to certain designated family members of the victim (spouse, parents, children):
- Lost financial support;
- Lost savings or inheritance;
- The value of lost household services; and
- The family member’s emotional distress (mental anguish, love, companionship, comfort, and society).
These amounts may vary from person to person, meaning a court might decide that one family member is entitled to more money than another.
Survival Action Damages
A successful survival action generates compensation for the victim’s:
- Medical expenses;
- Lost income;
- Pain and suffering; and
- Other economic and non-economic losses.
Naturally, money that goes into a deceased victim’s probate estate comes out again when it goes to estate beneficiaries. Typically, these people are some of the same family members who received wrongful death damages.
In some cases, however, an estate beneficiary is not a family member. Even an estate creditor might end up receiving this money.
Contact a Lawyer To Help You File a Texas Wrongful Death Claim
Wrongful death claims can be tricky. Since wrongful death claims place a value on a human life, they tend to involve a lot of money. The more money is involved, the harder the defendant is going to fight to avoid paying it. And the harder the defendant fights, the more you are going to need a lawyer to help you.
Don’t worry if your pockets are empty, because personal injury lawyers calculate their fees as a contingency fee. That means you don’t pay unless you win compensation. Reach out for a free initial consultation to learn about your legal rights and options.
Contact the Laredo Wrongful Death Lawyers at Roderick C. Lopez Personal Injury Lawyers Today
If you have experienced the loss of a loved one and are in the healing process, speaking with an experienced wrongful death lawyer can be an extremely helpful step in the process of getting the closure you need.
Contact our Laredo Wrongful Death Attorneys at Roderick C. Lopez Personal Injury Lawyers to schedule a free case review today.
Roderick C. Lopez Personal Injury Lawyers
6557 Metro Court, Suite 1 Laredo, TX 78041
(956) 529-7336
