What You Need to Know about Wrongful Death Claims in Texas
If someone else’s negligence causes you to lose a loved one, it is an irredeemable loss that no amount of compensation can make right. Obtaining the compensation to which you are entitled via a wrongful death claim, however, can help you and your family better prepare yourselves to face the journey forward toward healing. Wrongful death claims are a particularly complicated area of the law that many people find intimidating, but understanding the basics can help you move forward with increased confidence.
What Is a Wrongful Death Claim?
In order to better understand what wrongful death claims are and how they work, it is useful to employ an example. If your loved one is injured in a car accident that is caused by another driver’s negligence, he or she can file a personal injury claim against the at-fault driver (usually through the other driver’s insurance provider). If your loved one, however, succumbs to the injuries he or she suffers, you can – in essence – step into his or her shoes and file a wrongful death claim on his or her behalf (again, this typically goes through the at-fault party’s insurance provider). In order to bring a wrongful death claim in the State of Texas, your loved one must have lost his or her life due to the at-fault party engaging in one of the following:
A wrongful act
Having a lack of necessary skill
Failing to fulfill an obligation (default)
Whether the at-fault party’s actions were intentional, negligent, or devoid of concern for the victim’s safety, you can address your loss through a wrongful death claim (and this is true even if the person responsible is also facing criminal charges regarding the matter).
The Elements of Your Wrongful Death Claim
In order to bring a successful wrongful death claim, the following elements must all be present:
The injuries sustained by your loved one ultimately proved fatal.
The fatal injuries were the direct result of the at-fault party’s negligence (or an action that is even more reprehensible).
Your loved one would have been eligible to file a personal injury claim against the responsible party had he or she survived.
Criminal vs. Wrongful Death Cases
If the party whose negligence caused you to lose a loved one also faces criminal charges, it is useful to understand the distinction. A criminal charge is levied by the state, and a conviction can lead to jail time and to financial penalties. A wrongful death case, on the other hand, is a civil case in which you bring a claim against the at-fault party, and if you prevail, he or she will be financially liable (generally through his or her insurance carrier) for the covered damages involved. In a criminal case, the burden of proof that the state must meet is beyond a reasonable doubt (it would be unreasonable to believe otherwise), which is much higher than it is for your civil case, which is a preponderance of the evidence (it is more likely than not).
Filing a Wrongful Death Claim
In the State of Texas, only the following parties may file a wrongful death claim over the loss of a loved one (who becomes the decedent in the claim):
The decedent’s surviving spouse
The decedent’s surviving child or children
The decedent’s surviving parents
This means that if the decedent has no surviving spouse, his or her child or children may file, and if he or she also has no surviving children, his or her parents may file. Barring these survivors, the decedent’s estate representative, who is named in the estate, may file on behalf of the decedent’s survivors or on behalf of his or her estate (depending upon the situation). If the decedent’s survivors who qualify to file, however, request that no wrongful death claim be filed, the estate representative is barred from doing so.
In Texas, the statute of limitations for filing a wrongful death claim is two years from the date of your loved one’s passing (and not from the date of the accident that ultimately proves fatal). This statute of limitations amounts to a time constraint, and it is important that you recognize how swiftly two years can pass in the aftermath of a tragedy of this magnitude.
In your wrongful death claim, you will seek compensation for the damages you have suffered as a result of your immense loss. These damages can include all the following:
The lost income that your loved one would have contributed to your household had he or she survived
The care, support, maintenance, counsel, services, and advice that your loved would have provided to the members of your family had he or she survived
The emotional pain and suffering you have endured as a result of your immense loss
The loss of your loved one’s companionship, society, comfort, and love
The loss of the inheritance your loved one would have left if he or she had lived to his or her life expectancy
If the at-fault party’s actions are especially egregious, punitive damages may be available. In order for punitive damages to apply, the at-fault party’s actions must reach the level of willful (or purposeful), of grossly negligent, or of failing to act. Punitive damages are intended to punish the at-fault party and to help dissuade others from following in his or her footsteps. Ultimately, the damages awarded in a wrongful death case flow to the decedent’s qualified survivors in accordance with their suffering.
Filing on Behalf of the Decedent’s Estate
In Texas, there is also what is known as a survival claim, which means you can file for recovery on the damages your loved one encountered prior to succumbing to his or her fatal injuries. These can include:
The pain and suffering your loved one endured prior to passing
The cost of your loved one’s funeral and burial
The medical bills that apply to the treatment your loved one received prior to death
The lost earnings your loved one experienced between the injury-causing accident and death
Any property damage your loved one experienced, such as to his or her vehicle in a traffic accident
Obtaining the Compensation to Which You Are Entitled
If you have lost a loved one, the path forward toward healing is sure to be long and rocky, but obtaining the compensation to which you are entitled can help you on your difficult journey forward. Most wrongful death claims are filed with the at-fault party’s insurance carrier, and there are some important points to keep in mind. Though paid to cover your losses, the insurance company is on the side of the insurance company, which means that it is intent on keeping its profits high and its settlements low. Beware of the tactics that are commonly employed for these purposes, including:
An early settlement offer that is too low to cover your losses but that the insurance company hopes you will accept out of desperation
A claim denial that is intended to scare you off (the court, however, has the final say in the matter – not the insurance company)
Doubt cast on the extent of the damages you have suffered
An overly complicated and/or lengthy claims process that is designed to wear you down
An attempt to minimize the policyholders’ fault in the matter (or to deny it outright)
Frequently Asked Questions
Losing a loved one to someone else’s negligence is exceptionally difficult, and you naturally have any number of questions racing through your mind. The answers to some of the most frequently asked questions may help.
Will my Case end up in court?
You have been through a terrible ordeal, and the thought of going to court may be too much to contemplate at the moment. It is important to know, however, that the majority – by far – of wrongful death claims are settled out of court, which means that yours is likely to follow suit. Wrongful death claims tend to be quite emotional, and the insurance company may not want to gamble on the jury seeing things in the same cold, calculating light that it sees the matter. If the insurance company handling your claim refuses to negotiate fairly, however, your wrongful death attorney will likely encourage you to file a wrongful death lawsuit against it. Demonstrating that you are ready to move forward to trial might be just the motivation that the insurance company needs to do the right thing and enter into fair negotiations.
What questions should I ask a prospective wrongful death attorney?
Wrongful death claims are complicated and lengthy legal endeavors, and having a wrongful death attorney in your corner who is a good fit for you and your case is paramount. Asking a prospective wrongful death attorney the following questions can help you in your search:
How much experience do you have in successfully handling complicated wrongful death claims?
Do you have the time, skill, and resources to take my case to court if the need should arise?
What will you need from me? (Your wrongful death attorney should attend to the details of your case while you focus on your recovery.)
What are the unique strengths and challenges of my wrongful death claim?
Will you be handling my case, or will you be handing it off to someone else?
What damages can I seek?
If you have questions, do not be afraid to speak up.
What are my options if I cannot afford an experienced wrongful death attorney?
You have lost a beloved family member, and you are not only grief-stricken but may also be experiencing a serious financial downturn. The thought of shelling out money for legal expenses can be daunting, but this is not how the process generally works. Most reputable wrongful death attorneys work on what is known as contingency, which means their pay is dependent upon (or contingent upon) you obtaining either a settlement or a court award. Not until one of these happens will your dedicated wrongful death attorney receive a prearranged percentage of the settlement or court award you receive.
Can I file a wrongful death claim if my marriage was common law?
Yes, if your common-law spouse is killed by someone else’s negligence, you are entitled to file a wrongful death claim in the State of Texas. Further, now that same-sex marriages are nationally recognized, you can also file if you are a same-sex spouse.
Can an adoptive child file a wrongful death claim?
Things can become even more complicated when the decedent and the survivor have an adoptive relationship. Consider the following regarding parents and children generally:
An adoptive child can bring a wrongful death claim in relation to the loss of his or her adoptive parent but cannot in relation to his or her biological parent.
Adoptive parents can file wrongful death claims in relation to the loss of their adoptive child, but stepparents and foster parents may not.
A child, including an adult child, can file a wrongful death claim for the loss of his or her biological parent.
Parents do not have to be married to file a wrongful death claim in relation to the loss of a biological or adoptive child.
Grandparents and siblings cannot file wrongful death claims in the State of Texas (although they can in several other states).
Turn to an Experienced Killeen Wrongful Death Attorney for the Legal Guidance You Need
Brett Pritchard at The Law Office of Brett H. Pritchard in Killeen, Texas, is a compassionate wrongful death attorney with the skill, legal insight, and experience to help guide your claim toward a favorable resolution that allows you to continue moving forward toward recovery. Our trusted legal team takes great pride in our impressive track record of helping clients like you recover fully from their losses, and we’re here for you, too. For more information about how we can help, please do not hesitate to contact us online or call us at 254-501-4040 today.