Wrongful Death FAQs

The legal definition of wrongful death is the death of any person that occurs as the result of the careless, reckless, or negligent actions of another. Under Texas law, a death may be a wrongful death if it was caused by another’s “neglect, carelessness, unskillfulness, or default.”

In Texas, the immediate family of an individual who was killed due to some form of negligent or careless action by others may bring a lawsuit in civil court seeking financial compensation from the at-fault party. This type of legal action is known as a wrongful death lawsuit. A wrongful death lawsuit demands monetary compensation for the loss of a loved one due to someone else’s misconduct.

At Herrman & Herrman, our compassionate attorneys understand that no amount of money is adequate compensation for the loss of a loved one. But you should not have to endure financial hardship or medical debt because someone else’s carelessness or inattention took the life of your loved one. A wrongful death claim can provide monetary compensation to cover medical expenses, funeral and burial costs, lost income, and pain and suffering after an accident.

The first step is to assess whether a family has a viable wrongful death claim related to a loved one’s death. The best way to determine the viability of your claim is to have an experienced wrongful death attorney review the circumstances of the death. After evaluating the facts leading to your loved one’s death, an attorney at Herrman & Herrman can discuss your legal options.

If an attorney believes that you have a viable wrongful death claim, the attorney will need to conduct a detailed investigation into your loved one’s death and gather evidence for the legal claim.

An attorney will also need to calculate the monetary value of your case by examining all medical bills, funeral expenses, income brought in by the deceased, and other factors. The case can then be filed on your behalf.

Once the case has been filed, there will be a period in which the opposing sides exchange evidence to further develop the case. At this time, negotiations may take place to seek a settlement and avoid a full trial. The last step of the process would be the actual trial where the evidence is presented, and the court decides the outcome.

In Texas, the state allows the surviving spouse, children, or parents of the deceased to file a wrongful death claim. An individual is allowed to file a single claim, or family members may come together as a group to file a claim together. Adult children may file a wrongful death claim if they lose a parent, and the same is true for adoptive children. If a child was legally adopted, that child may file a lawsuit over the death of a parent, and the same goes for a parent who loses a legally adopted child.

Texas law does not allow surviving siblings to file wrongful death claims for the loss of a brother or a sister.

If no surviving spouse, children, or parents come forward to file a wrongful death claim within three months of the individual’s passing, a personal representative may file a claim on behalf of the estate of the deceased. A personal representative is also known as an executor and is typically the person named in the deceased’s will as the representative of the individual’s estate.

If negotiation or a lawsuit results in a settlement being awarded, the damages received are divided among the surviving family members. The court will look at which family members suffered as a result of the death of their family member and apportion the settlement accordingly. The court may look at whether there are children who still need care or a surviving spouse or parents who have lost the support of their loved one.

To prove a wrongful death case in Texas, let us revisit the definition of wrongful death. It is the death of a person that occurs as the result of a wrongful act due to “neglect, carelessness, unskillfulness, or default.” To build a case for wrongful death, you must first establish that a party’s action was either neglectful, careless, unskillful, or failed to uphold a legal duty to act with reasonable caution. An experienced lawyer can tie these terms to the specific facts of the accident.

An attorney will need to find evidence to back up the claim that the death was, in fact, caused by negligence. This evidence may come in the form of police reports, medical paperwork, photos, video surveillance footage and witness accounts. Once the evidence has been assembled, it must point towards the following:

• The party responsible owed a legal duty of care to the victim.
• The legal duty of care was breached by the party.
• The party’s breach resulted in the accident/injuries that caused the death of the victim.
• The death of the victim resulted in losses.

A compassionate attorney at Herrman & Herrman can evaluate the circumstances that took your loved one’s life and discuss whether a wrongful death claim is in order.

The circumstances surrounding a wrongful death case may determine how the settlement ends up being divided between family members. If a case ends up going to trial, the court will decide how the money gets divided between family members. The court will take into account how each member is affected by the death of the victim. The court will consider if there are minor children involved and if a spouse is left with no source of income following the death.

If the case is settled out of court, then your attorney will be able to help you understand the allocation of the settlement.

If adult beneficiaries are not agreeable to compensation divisions, each individual may wish to hire separate attorneys to pursue claims against the responsible party. An experienced wrongful death attorney can help you determine which options may be right for your circumstances.

In a wrongful death suit, the amount of compensation can vary depending on the facts of the case. Typically, a court can award damages that cover economic losses such as medical expenses, funeral costs, and loss of income. Courts may also award non-economic damages for things such as the loss of companionship, and pain and suffering. In Texas, these non-economic damages for wrongful death cases are capped at $500,000. Families may be able to receive compensation up to $1,500,000 after the cap is adjusted for inflation.

Some types of wrongful death claims may qualify for what is known as exemplary damages. These are damages that may be recovered in specific cases where a death is caused by a willful act or even gross negligence. These damages are also known as punitive damages and are meant to punish the wrongdoer.

Depending on the specifics of your case, part of the settlement you receive may be considered taxable income. IRS regulations are subject to change, so it is best to talk to an experienced attorney at Herrman & Herrman about how your settlement may be taxed.

Family members wishing to bring a wrongful death suit have a limited amount of time in which to take action. Texas gives family members two years from the date of the individual’s death to file a lawsuit. If the suit is not filed within the two-year time frame, it may be dismissed if filed after the deadline. There are some exceptions to this statute of limitations.

It is best to talk to an experienced wrongful death attorney sooner rather than later, to avoid running afoul of the statute of limitations.