A wrongful death lawyer San Antonio families contact after a fatal crash on Loop 1604 hears the same question first. Who is allowed to bring this claim? Texas answers it by statute, not by family agreement. Chapter 71 of the Civil Practice and Remedies Code names the people who may sue and sets a timetable for them to act. It also creates a second, separate claim that belongs to the estate. Understanding those three pieces prevents most of the confusion that follows a death in Bexar County.
Wrongful Death Lawyer San Antonio Basics: Who May File
Section 71.004 limits a wrongful death action to three groups: the surviving spouse, the children, and the parents of the deceased. Siblings, grandparents, and long-term partners who never married are not on the list, however close they were. Any one of the eligible family members may file for the benefit of all of them. If none of them has filed within three calendar months after the death, the duty shifts. The executor or administrator of the estate must then bring the action, unless every eligible person asks the estate not to. That three-month rule surprises many San Antonio families. It does not end the family’s rights. It shifts who is expected to act.
What a Wrongful Death Lawyer San Antonio Juries Hear Must Prove
The statute creates liability when an injury that causes death was the result of a person’s wrongful act, neglect, carelessness, unskillfulness, or default. In plain terms, the family must prove the same negligence case the deceased could have brought if the injury had not been fatal. A drunk driver on I-10, a trucking company that ignored hours-of-service rules, or a hospital that missed a diagnosis all fit that description. The family also inherits the deceased’s weaknesses. If the deceased was partly at fault, Section 33.001 reduces the recovery by that share. A share above 50 percent bars it entirely.
Two Claims, Not One: The Survival Action
Texas law treats a death as producing two distinct claims. The wrongful death claim compensates the family for its own losses, such as lost companionship, lost financial support, and mental anguish. The survival action under Section 71.021 is different. It is the deceased’s own personal injury claim, which does not abate at death. It belongs to the estate and covers what the deceased experienced before dying, including conscious pain and medical expenses. A wrongful death lawyer San Antonio probate courts see regularly will usually file both claims together. The evidence overlaps, but the beneficiaries do not.
How Damages Are Divided Among Family Members
Section 71.010 puts the division in the jury’s hands. Jurors award an amount proportionate to the injury resulting from the death, then divide it in shares among the people entitled to recover. A spouse and an adult child may receive very different shares based on their relationship with the deceased. Section 71.009 adds exemplary damages when a willful act or gross negligence caused the death. That is why fatal drunk-driving and trucking cases proceed differently from ordinary negligence claims.
The Two-Year Clock Starts at Death
Civil Practice and Remedies Code Section 16.003(b) gives the family two years to file. The cause of action accrues on the date of death, not the date of the injury. A person injured in March who dies in June has a deadline measured from June. Negotiation with an insurer does not pause the period. Fatal cases also involve probate steps, such as appointing an administrator, that take months in Bexar County Probate Court. Starting early leaves room for both tracks.
The Bottom Line
Chapter 71 is generous about what the family may recover and strict about who may recover it. The statute’s list of eligible relatives does not bend for a devoted sibling or a partner of twenty years. Meanwhile, the three-month executor rule can move the claim into the estate’s hands before a grieving family has met with anyone. A wrongful death lawyer San Antonio families retain early keeps the two claims aligned and the two-year deadline in view while the family grieves.
Frequently asked questions
Civil Practice and Remedies Code Section 71.004 limits the claim to the surviving spouse, children, and parents of the deceased. Siblings and unmarried partners are not eligible under the statute.
If no eligible family member has filed within three calendar months after the death, Section 71.004 requires the executor or administrator of the estate to bring the action, unless all eligible family members ask the estate not to.
The wrongful death claim compensates the family for its own losses. The survival action under Section 71.021 is the deceased’s own personal injury claim, which belongs to the estate and covers what the deceased experienced before death.
Under Civil Practice and Remedies Code Section 16.003(b), the cause of action accrues on the date of death, so the two years run from the death rather than from the original injury.
Find the right attorney for what you’re facing.
Independent and free — matched to your situation, not to whoever advertises loudest.
Get MatchedKeep reading: Medical Malpractice Lawyer San Antonio: University Health, Methodist, and the 120-Day Deadline · Texas Statute of Limitations for Injury Claims · Texas Proportionate Responsibility: The 51% Bar Explained
This article is for general informational purposes only and does not constitute legal advice. Eligibility to bring a wrongful death or survival claim in Texas depends on the family relationship and the facts of each case. If you have lost a family member, please take care of yourself and your family first.