A wrongful death lawyer Austin families contact after a fatal crash on I-35 or a death at a Travis County hospital usually hears the same first question. Who may bring the claim? Texas answers that with a short list, and the list is narrower than most families expect. Chapter 71 of the Civil Practice and Remedies Code names the people who can sue, sets a clock that starts on the date of death, and creates a second claim that belongs to the estate rather than the family. Understanding those three pieces is therefore the starting point for any Austin wrongful death claim.
Who Texas Allows to File
Civil Practice and Remedies Code Section 71.004 limits a wrongful death action to the surviving spouse, children, and parents of the person who died. Siblings do not appear on the list. Neither do grandparents, fiancés, or long-term partners who never married. Any one of the named family members may bring the action for the benefit of all of them. If none of them files within three calendar months after the death, then the executor or administrator of the estate must bring the claim unless every beneficiary asks them not to. That three-month rule surprises families who are still arranging a funeral. However, it does not end their rights. It simply shifts who carries the case forward.
What a Wrongful Death Lawyer Austin Families Retain Has to Prove
Section 71.002 sets the standard. A person is liable for a death caused by that person’s wrongful act, neglect, carelessness, unskillfulness, or default. In plain terms, the family must prove the same negligence the person could have proved while alive. A driver who ran a red light on Ben White, a trucking company that ignored hours-of-service limits, or a property owner who left a hazard in place all fit within that language. Additionally, the claim follows the same fault rule as any injury case. Section 33.001 bars recovery if the person who died was more than 50 percent responsible. A smaller share reduces the family’s recovery in proportion. Insurers raise that argument in fatal crashes for a simple reason: the one person who could contradict it is gone.
Two Claims a Wrongful Death Lawyer Austin Families Hire Files Together
Texas separates the family’s loss from the loss suffered by the person who died. The wrongful death claim under Chapter 71 belongs to the spouse, children, and parents. It addresses what they lost. Section 71.021 creates the survival claim. It says a cause of action for personal injury does not abate because the injured person died. That claim belongs to the estate. It covers what the person went through between the injury and the death, along with expenses the estate absorbed. Families usually file the two claims together in Travis County district court. Even so, a court evaluates them separately, and the survival claim passes through the estate to whoever inherits, which may include people outside the Chapter 71 list.
How Recovery Is Divided
Section 71.010 tells the jury to divide any award into shares among the beneficiaries who are alive at the time of the verdict. For example, a spouse and two adult children may receive very different shares depending on the evidence about each relationship. Section 71.009 adds one more layer. When a willful act or gross negligence caused the death, the family may also recover exemplary damages alongside actual damages. That provision comes into play in drunk-driving deaths and in cases where a company knew about a danger and left it in place. This article does not discuss amounts. Every fatal case turns on its own facts, and any number offered before those facts emerge is a guess.
The Deadline Starts on the Date of Death
Civil Practice and Remedies Code Section 16.003(b) requires a wrongful death suit to be filed within two years. The statute states that the cause of action accrues on the death of the injured person. That wording matters when someone survives an injury for months before dying. In that situation, the clock runs from the death, not from the crash. Families sometimes assume the deadline is generous because two years sounds like a long time. In practice, medical records, crash reconstruction, and estate paperwork consume much of it.
The Bottom Line
Texas law is precise about who may bring a wrongful death claim and vague about almost everything else. The spouse, children, and parents hold the claim, while the estate holds a separate survival claim. A jury then divides any recovery into shares. The deadline runs two years from the death. None of that guarantees a result, because insurers still contest fault and the person best able to describe the crash is not there to do it. A wrongful death lawyer Austin families work with spends most of the case rebuilding that account from evidence the family never had to gather before.
Frequently asked questions
Civil Practice and Remedies Code Section 71.004 limits the claim to the surviving spouse, children, and parents. If none files within three months, the estate’s executor or administrator must, unless the beneficiaries ask otherwise.
The wrongful death claim belongs to the family and addresses their loss. The survival claim under Section 71.021 belongs to the estate and covers what the person went through before death.
Section 16.003(b) states that the cause of action accrues on the death, so the clock runs from the date of death rather than the date of the injury.
Section 71.009 allows exemplary damages when the death was caused by a willful act or omission or by gross negligence.
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This article is for general informational purposes only and does not constitute legal advice. Who may bring a wrongful death claim, and on what timeline, depends on the family’s circumstances and the facts of the death. Families facing this loss deserve careful, individual guidance.
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