You may know that if a person dies as the result of a personal injury, his or her estate can bring a wrongful death lawsuit. But are you aware of the legal procedure called a survival action?
Wrongful death and survival statutes
In Texas, when someone dies as a result of someone else’s negligence, wrongful acts or defective products, two laws exist to allow for actions to help families become whole again.
One is the Texas Survival Statute, which is so named because it allows a personal injury lawsuit to “survive” the death of a person. The other, called the Wrongful Death Act, allows a surviving spouse, children and parents of the deceased to bring about legal action. The deceased may be any person including a child not born alive.
How the laws work
A survival action is prosecuted in the same manner as an ordinary personal injury lawsuit. Damages – such as lost wages, medical bills, property damage, funeral expenses – are available under this statute. Recovery is offered as part of the deceased’s estate.
In wrongful death suits, beneficiaries can recover personally for the damages they incur as a result of the loss of their loved ones and not the actual injuries sustained to the deceased as in a survival action. The law is strictly construed to only allow recovery for the surviving spouse, children and parents of the deceased.
Prosecuting a wrongful death case
In many cases, a beneficiary of a wrongful death action and a survival action may be the same and two lawsuits may be brought for the same injurious conduct. In any wrongful death case, what can be recovered depends on a number of factors, including attempts to place a monetary value on both tangible and intangible benefits that were lost upon the death of your loved one.
In all wrongful death cases, it is important to seek the advice of an attorney as soon as possible after an injury has occurred. This is because the law only provides a short period of time – called the limitations period – after an accident to bring a lawsuit.