Texas Civil Practice and Remedies Code section 71.021 provides that a personal injury claim does not end when the injured person dies. It passes to the heirs, legal representatives, and estate, and it survives even if the person responsible has died. It is separate from the family’s wrongful death claim. Owsley Law Firm handles both and charges no fee unless we recover.
When a person is injured in a crash and later dies, two different claims can exist. The wrongful death claim compensates the family for their own losses. The survival claim carries forward the claim the injured person would have had if they had lived.
Section 71.021 is what keeps that claim alive. This page explains what it covers, who brings it, and how it fits with the wrongful death claim.
What is a survival claim in Texas?
It is the injured person’s own claim for injuries, which continues after death in favor of the heirs, legal representatives, and estate.
The survival claim and the wrongful death claim are usually handled together, but the money goes different places. Survival damages pass through the estate, which can matter when the deceased person had debts or a will. Wrongful death damages go directly to the spouse, children, and parents in the shares the jury finds.
The claim does not abate because of the injured person’s death, or because of the death of the person who caused the injury. The suit can be brought as if the responsible person were alive.
How is a survival claim different from wrongful death?
Wrongful death compensates the spouse, children, and parents for their losses. The survival claim compensates the estate for the deceased person’s losses before death.
- Survival: the person’s pain and suffering before death
- Survival: medical expenses before death
- Survival: funeral expenses in many cases
- Wrongful death: the family’s loss of support and companionship
- Wrongful death: the family’s mental anguish
Who brings a survival claim?
Usually the estate’s personal representative, or the heirs when no administration is needed.
Whether an estate needs a formal administration depends on the family’s circumstances. That question should be answered early so the claim is brought by the right person.
What if the at-fault driver also died?
The claim survives against the at-fault person’s legal representatives and estate, and their liability insurance still applies.
Section 71.021(b) says the action survives against the liable person and that person’s legal representatives. In practice, the at-fault driver’s insurer usually handles the claim.
How is a survival claim valued?
By the deceased person’s own losses between the injury and death, such as conscious pain, medical expenses, and lost earnings during that time.
Evidence of what the person experienced, from medical records, first responders, and witnesses, supports the pain and suffering portion. Medical and funeral bills provide the economic portion. Where the person lived for days or weeks, the survival claim can be substantial.
Exemplary damages may also be pursued through the survival claim in cases of gross negligence, subject to Chapter 41.
What deadlines apply?
The survival claim generally follows the personal injury deadline, so families should act well within two years of the injury.
Texas law can suspend limitations for a period after a person’s death in some situations, but the safest approach is to file well before two years from the injury. The wrongful death claim runs two years from the death.
How it is proven after a crash
- Medical records from injury to death
- Bills for treatment before death
- Funeral and burial expenses and receipts
- Witness and first responder accounts of the person’s condition
- Estate and heirship documents
Mistakes that cost people money
- Assuming the claim ended with the death
- Overlooking pre-death pain and expenses
- Not resolving who represents the estate
- Letting the deadline approach while grieving
Frequently asked questions
Does the survival claim include the person’s lost wages?
It can include earnings lost between the injury and death. Losses of future support after death belong to the wrongful death beneficiaries instead.
What is the difference between survival and wrongful death?
Survival covers the deceased person’s own losses for the estate. Wrongful death covers the family’s losses.
Can both claims be brought together?
Yes. They are usually brought in the same lawsuit.
Who receives survival damages?
The estate, which passes them to heirs under a will or Texas inheritance law.
What if the person died at the scene?
There may be little pre-death suffering, but medical and funeral expenses can still be part of the survival claim.
How long do we have to file?
Act well within two years of the injury. Wrongful death runs two years from the death.
This page is general information about Texas law and is not legal or medical advice. Every case depends on its own facts. Contact the firm for a free review of yours.
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