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What is the Statute of Limitations in Wrongful Death Cases

In Texas, there are two types of claims in a wrongful death action:

  • Survival
  • Wrongful Death

The statute of limitations for a wrongful death claim depends on the type of claim made. A survival action must be filed within two years of the date of the decedent’s injury, while a wrongful death action must be filed within two years of the date of the decedent’s death. The individuals who may bring a survival action on behalf of the decent are the decedent’s personal representative or heir.

The decedent’s spouse, children, and parents can all bring wrongful death claims. The damages recoverable in a survival claim include the decedent’s pain and mental anguish, medical expenses, funeral expenses, and exemplary (punitive) damages. These damages are divided pursuant to the decedent’s will or the laws of descent and distribution. The recovery of these damages belongs to the decedent’s estate.

The damages a wrongful death claimant incurs include loss of advice and counsel, loss of services, expenses for psychological treatment, funeral expenses, mental anguish, loss of companionship and society, and loss of inheritance. Wrongful death claimants who are the spouse and biological children of the decedent may also claim exemplary (punitive) damages. These damages are determined and apportioned according to the fact finder, whether it a jury or a judge.

Any individual who has a wrongful death claim she file suit as soon as possible. The discovery rule and open courts provision of the Texas Constitution do not suspend the accrual of the two year statute of limitations. If there is ever any doubt regarding the claim, it is safer to err on the side of filing suit as opposed to waiting and missing the deadline to file. Preserving your claim with regards to the statute of limitations is always paramount.



 

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