Wrongful Death and Survival Claims The most devastating loss imaginable is the death of a family member or loved one. Such a tragedy becomes even more upsetting when it is the result of someone else’s careless or otherwise wrongful conduct. What compensation is available under these heartbreaking circumstances? The Texas legal system provides two avenues for legal recovery: Wrongful Death Claims and Survival Claims. WRONGFUL DEATH CLAIMS What is a Wrongful Death Claim? A Wrongful Death Claim allows spouses, children and parents to recover personally for damages they experience due to a loved one’s death. The damages available in a Wrongful Death Claim are separate from the decedent’s personal injuries (which are recoverable under a Survival Claim, explained below). Who is entitled to recover for Wrongful Death? People entitled to recover under a Wrongful Death Claim include the surviving spouse, children and parents. If none of these people file a Wrongful Death Claim within three months of the date of death, the personal representative or executor of the decedent’s estate may file the claim instead, unless those entitled to recover specifically request that the Wrongful Death Claim not be filed. In Texas, adult children may file Wrongful Death Claims for the death of a parent. However, surviving siblings are not entitled to recover wrongful death damages for the loss of a brother or sister. When is the deadline to file a Wrongful Death Claim? Generally, Wrongful Death Claims must be filed within two years of the date of the decedent’s death. Exceptions may exist, such as where the death is caused by certain types of criminal conduct. What damages can be recovered in a Wrongful Death Claim? Damages recoverable in a Wrongful Death Claim include: Financial loss Lost care, maintenance, services, and support Mental and emotional anguish, pain, and suffering Lost love, companionship, comfort, and society Lost inheritance Exemplary Damages (sometimes known as Punitive Damages) may also be available. Exemplary damages are awarded to punish conduct that is considered especially wrongful. These damages are recoverable when the defendant’s conduct was willful or grossly negligent. Exemplary Damages must be proven by clear and convincing evidence. Under Texas law, Exemplary Damages are limited to the greater of: (a) twice the value of economic damages, plus noneconomic damages, not to exceed 0,000, or (b) 0,000. In cases where the death was caused by the defendant’s commission of certain types of felonies, these limitations do not apply. SURVIVAL CLAIMS What is a Survival Claim? A Survival Claim allows recovery for the decedent’s personal injuries. The claim is pursued by the decedent’s heirs, legal representatives or estate in the same manner that the decedent could have if the decedent had survived. Who is entitled to recover under a Survival Claim? Survival Claims may be brought by the decedent’s heirs, legal representatives or estate. When is the deadline to file a Survival Claim? Generally, Survival Claims must be filed within two years of the date of the decedent’s death. However, if there is no qualified executor or administrator of the decedent's estate, the deadline is suspended while one is located. The deadline can be suspended for up to 12 months. What damages can be recovered in a Survival Claim? Damages recoverable in a Survival Claim include: The decedent’s conscious pain and mental anguish Reasonable medical expenses incurred in treating the decedent’s injuries Reasonable funeral and burial expenses Decedent’s lost wages As with Wrongful Death Claims, Exemplary Damages are recoverable in Survival Claims where clear and convincing evidence shows the defendant’s conduct was willful or grossly negligent. Exemplary Damages in Survival Claims are subject to the same dollar value limitations as those in Wrongful Death Claims. If you have lost a loved one due to another’s careless or wrongful conduct, you are legally entitled to recovery. You do not have to face this battle alone. Hire an experienced personal injury attorney now! Contact Attorney Frank Giunta Today.