The Texas Survival Statute: Survival Action vs. Wrongful Death

A survival action, governed by the Texas Survival Statute, is a legal recourse available to the estate of a deceased person who suffered injury that led to their death. It allows the estate to pursue a claim for damages suffered by the deceased from the time of injury until their death. These can include medical expenses, pain and suffering, as well as lost wages.

Typically, to pursue a survival action there must be conscious pain and suffering by the deceased between the time of the accident and the death. In general, longer periods of conscious pain and suffering allow for a stronger survival action claim, though short periods can support a survival action, particularly if the suffering was immense. This period of conscious suffering is substantiates the claim for the pain and suffering damages under the Texas Survival Statute.

A survival action is distinct from a wrongful death claim, as it seeks to address the losses experienced by the deceased, rather than the surviving family members.

What is the Difference Between a Survival Action and Wrongful Death Claim in Texas?

In Texas, wrongful death claims and survival actions serve distinct roles in the aftermath of a tragic loss of life due to someone else’s negligence. As legal concepts under Texas Law, it’s crucial to understand their differences:

  • Wrongful Death Claim:  A wrongful death claim is a civil action initiated by the surviving family members. This claim seeks compensation for their personal loss, such as loss of companionship, mental anguish, lost earnings from the deceased, and lost inheritance. The core purpose of this claim is to compensate the survivors for their loss associated with the untimely death.
  • Survival Action:  A survival action, as per Texas Survival Statute, is a claim maintained by the deceased’s estate. This action recovers damages that the deceased could have pursued if they had survived. It includes pain and suffering experienced by the deceased before death, pre-death medical expenses, and lost wages for the period between the accident and their death.

In summary, while both seek to redress the losses following an untimely death, a wrongful death claim compensates the survivors for their personal loss, whereas a survival action is concerned with the losses and suffering of the deceased prior to their passing.

Family grieving at grave - Attorneys for wrongful death and survival action claims in Texas

How Do the Beneficiaries of a Survival Action Differ from Those in a Wrongful Death Claim?

The beneficiaries of a survival action and a wrongful death claim in Texas differ significantly, which is important to understand when pursuing compensation for a tragic loss.

Beneficiaries in a Survival Action

In a survival action under the Texas Survival Statute, the beneficiaries are usually the deceased’s estate or the heirs at law. These beneficiaries are typically designated in the deceased’s will, or in the absence of a will, determined by Texas intestate succession laws. The damages recovered from a survival action are distributed according to the testamentary provisions or laws of intestate succession.

Beneficiaries in a Wrongful Death Claim

In a wrongful death claim in Texas, the beneficiaries are specifically the surviving spouse, children, and parents of the deceased. These immediate family members are uniquely positioned to suffer emotional and financial losses due to the untimely death of their loved one. The specifics are as follows:

  • Surviving Spouse:  The surviving spouse may be entitled to compensation for loss of companionship, emotional suffering, loss of financial support, and other damages.
  • Children (including legally adopted adult or minor children):  Children may seek damages for the loss of parental guidance, emotional support, and potential financial contributions.
  • Parents (including legally adoptive parents, but not biological parents who gave the child up for adoption):  The parents of the deceased can claim compensation for the emotional trauma of losing a child, alongside other potential damages.

While there may be an overlap between the beneficiaries in both claims, the distinctions are primarily based on the nature of the claim and the damages sought.

Example of How Survival Actions and Wrongful Death Claims Differ

Consider a hypothetical example to better illustrate the differences between a survival action and a wrongful death claim.

Example of a Survival Action

Consider the hypothetical scenario of Mr. Smith, who was severely injured in a car accident due to the negligence of another driver. Following the accident, Mr. Smith survived for a month before succumbing to his injuries.

During this time, he incurred substantial medical expenses, lost wages due to his inability to work, and experienced significant pain and suffering. In this scenario, the survival action could claim damages including:

  • Medical Expenses:  The costs of all medical treatment Mr. Smith received from the time of the accident until his death can be claimed. This can include emergency care, hospitalization, surgeries, medication, and other related costs. One important thing to note is that Texas hospital liens typically do not attach to survival action benefits (Tarrant County Hospital Dist. v. Jones664 S.W.2d 191), but do attach to wrongful death settlements.
  • Lost Wages:  If Mr. Smith was employed and his injuries prevented him from working, the claim could include the wages he would have earned during the time from the accident until his death.
  • Pain and Suffering:  Damages for the physical pain and emotional distress experienced by Mr. Smith from the time of the accident until his passing can also be claimed. This is often a significant portion of the claim, but it can also be challenging to quantify.
  • Funeral and Burial Costs:  The reasonable cost of Mr. Smith’s funeral and burial can also be included, if applicable.

These damages are pursued by the representative of Mr. Smith’s estate under the Texas Survival Statute, for the losses experienced by Mr. Smith himself prior to his death.

Example of a Wrongful Death Claim

Continuing with the case of Mr. Smith, let’s consider that he left behind a wife and two minor children. After his death, his family can file a wrongful death claim. This claim seeks compensation for the losses they endured due to Mr. Smith’s untimely death as a result of the other driver’s negligence. The damages they could claim include:

  • Loss of Support:  This pertains to the financial income that Mr. Smith would have contributed to the family had he not passed away. This can include his future wages, benefits, and any other forms of financial support.
  • Loss of Services:  The family can claim compensation for the value of services that Mr. Smith would have provided, such as child care, household chores, and the like.
  • Loss of Companionship:  Mr. Smith’s wife can seek damages for the emotional loss and companionship that resulted from her husband’s death.
  • Loss of Parental Guidance:  The children can claim compensation for the loss of parental guidance, care, and nurturing they would have received from their father.
  • Mental Anguish:  Mr. Smith’s family can seek compensation for the emotional pain and suffering they have experienced due to Mr. Smith’s death.

These damages are pursued by Mr. Smith’s surviving family members to compensate for their personal loss resulting from his untimely death.

Man placing a white rose flower on a grave - Survival action lawyers in Texas

Can You Make Both a Wrongful Death and Survival Claim?

Yes, in Texas, it is possible to pursue both a wrongful death claim and a survival action simultaneously, provided you meet the requirements for each. The wrongful death claim seeks compensation for the surviving family members’ personal losses, while the survival action seeks reparation for the deceased’s personal losses prior to their death when there is a period of conscious pain and suffering.

Although these claims may overlap to some extent, each addresses distinct categories of different types damages. Our experienced attorneys can navigate these complexities and guide clients in making both a wrongful death claim and a survival action to receive the full measure of justice for their loss.

Is There Any Benefit to Making a Survival Action Versus a Wrongful Death Claim in Texas?

Yes, there are distinct benefits to making a survival action versus a wrongful death claim in Texas.

  • Survival Action:  A survival action allows for the recovery of damages that the deceased would have been entitled to had they lived, including pain and suffering, medical expenses, and lost wages from the time of injury until death. It’s a way to seek justice for the deceased’s personal ordeal.
  • Wrongful Death Claim:  A wrongful death claim, on the other hand, doesn’t account for these damages. It primarily focuses on the losses suffered by surviving family members due to the death, like loss of support or companionship.

Therefore, the intrinsic benefit of a survival action is that it addresses the deceased’s personal losses, making it a crucial supplement to a wrongful death claim, which primarily caters to the losses of surviving family members.

How Long Do You Have to File a Survival Action in Texas?

In the state of Texas, the statute of limitations for both wrongful death and survival action claims is typically two years from the date of the deceased person’s death. This means that the survivors or estate have a two-year window to file a lawsuit.

However, the statute of limitations for personal injury varies by state in the US. Moreover, there can be exceptions to this rule. For instance, if the beneficiaries are minors or legally incapacitated, the two-year limitation may be tolled until they reach the age of majority or the incapacitation ceases. Given the complexities of these laws, it is prudent to consult with our experienced attorneys to ensure that all claims are timely and properly filed.

What Type of Attorney Handles Survival Actions?

Survival actions and wrongful death claims are typically handled by personal injury attorneys, as a survival action is a form of personal injury claim. However, it is unique in that it is filed posthumously on behalf of the deceased. Essentially, it is a continuation of the personal injury claim that the deceased could have filed had they survived.

Get the Financial Award Your Family Deserves

For all the suffering and financial strain caused by the loss of your loved one, you deserve justice, and we at Thompson Law are committed to helping you achieve it. Our legal team, which specializes in wrongful death claims and survival actions, will guide and support you every step of the way — from understanding the nuances of Texas law to the diligent pursuit of your claim.

Don’t let the complexity of the legal process deter you from seeking compensation that can provide financial security and a sense of closure for your family. Contact Thompson Law today, and allow our experienced Texas wrongful death lawyers and survival action attorneys to fight for the financial award your family deserves.

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