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What do I need to prove a wrongful death claim in Texas?

In Texas, to file a wrongful death lawsuit you must prove the legal elements of a wrongful death claim to recover compensation for damages.


Before discussing the legal elements of a claim, let's understand what Texas considers wrongful death.
In Texas, the wrongful death statutes states that you can hold a person liable for damages when they cause a family member’s death because of:
-Wrongful acts
-Neglect
-Carelessness
-Unskillfulness
-Failure to fulfill an obligation (default)

What Is "Wrongful Death" in Texas?
In Texas, a "wrongful death" occurs when:
-an injury causes a person's death or a fetus's failure to be born alive
-the injury is caused by another person's or entity's "wrongful act, neglect, carelessness, unskillfulness, or default"
-the injured person would have been entitled to file a personal injury lawsuit had he or she lived or been born alive

It can be useful to think of a wrongful death claim as a type of personal injury claim in which the injured person is no longer able to bring the claim on his or her own behalf. As with personal injury claims in general, many types of events can be the basis for a wrongful death lawsuit, including:

  • negligence-based incidents (such as car accidents)

  • medical malpractice, or

  • intentional acts (including crimes).


The most common causes of action for a wrongful death claim are negligence and wrongful acts. In either case, the family has the burden of proving the elements by a preponderance of the evidence. That means you must convince the jury that it is more likely than not (greater than a 50% chance) that the defendant is liable for your loved one’s death.

Let's talk about negligence. Negligence is the basis for most personal injury claims in Texas. What is negligence? Negligence is 'failure to use reasonable care, resulting in damage or injury to another.'

The legal elements of a wrongful death claim based on negligence are:
DutyThe party owed a duty of care to your family member
Breach of DutyThe party breached the duty of care
CausationThe party’s breach of duty was the direct and proximate cause of your family member’s death
Damages The death of your family member resulted in damages

Who May File a Wrongful Death Lawsuit in Texas?
Texas law specifies that the deceased person's surviving spouse, children, and parents—or one or more of those individuals on behalf of them all—are eligible to file a wrongful death lawsuit in the state's civil courts.
If the surviving spouse, children, or parents do not file a wrongful death claim within three months of the date of death, the personal representative (sometimes called the "executor") or administrator of the deceased person's estate may file the claim instead, unless all of the surviving family members listed above specifically request that the wrongful death lawsuit not be filed. (Tex. Civ. Prac. & Rem. Code § 71.004 (2021).)

If you find yourself in need of legal representation, we understand that wrongful death claims can be complex. Contact us today.


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