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Who can File a Wrongful Death Claim

Historically, if you were the spouse, child, or parent of someone killed in an accident you could not recover for the loss of that loved one. In 1860, Texas passed the first version of the Wrongful Death Act, thereby, creating the right to make a claim for the “wrongful death” of a loved one. That law can be found in Chapter 71 of the Texas Civil Practice and Remedies Code. When the Texas Legislature created this law it limited the individuals who could make a claim. In Texas, the claimants are limited to the spouse, children, and parents of the deceased. That means that the brothers and sisters of the deceased do not have a claim in Texas.

After thinking about this it will probably occur to you that, based on these guidelines, there are people out there whose death is the result of another’s negligence and who has no wrongful death beneficiaries. In other words, they are not married, have no children, and their parents predeceased them. In those cases, under Texas, law there is no wrongful death claim for that individual, however, Texas law does allow a claim to be brought directly on behalf of the decedent’s estate.

The same chapter and code contains the Texas Survival Statute, which allows a claim to be presented as if the decedent had lived. Under this law, a deceased person’s heir or estate representative asserts the personal injury claim that the deceased person would have been able to assert had he or she survive the fatal accident.

In a wrongful death claim a person can recover both actual and exemplary damages should he or she prevail. Exemplary damages are recoverable when the death is a result of the defendant’s gross negligence, or willful act or omission. Actual damages include: (1) financial losses such as the loss of the decedent’s earning capacity, and the value of the care, maintenance, services, support, advice, and counsel he or she would have provided the claimants; (2) mental anguish, which is the emotional pain, torment, and suffering as a result of the death of the family member; (3) the loss of positive benefits flowing from the love, comfort, companionship, and society from the death of the family member; and (4) Loss of inheritance, which is the value of the inheritance the deceased person would have left you had he or she lived a normal expected lifetime.