What Is the Difference Between a Wrongful Death Claim and a Survival Action in Texas?

 Posted on July 21, 2026 in Wrongful Death

When a family member dies in an accident because of someone else's negligence, Texas law may allow two separate legal claims. A wrongful death claim covers what the family loses after the death, like income and companionship. A survival action covers what the person who died went through before their death, like medical bills and pain. 

If you lost a loved one to an accident in 2026, a McKinney, TX wrongful death attorney can explain how wrongful death and survival action claims affect how much your family recovers.

What Is a Wrongful Death Claim Under Texas Law?

According to the Texas Department of Transportation, 4,289 people were killed in traffic crashes across Texas in 2023. When a fatal crash was caused by wrongful or negligent conduct, certain family members may have the right to pursue a wrongful death claim. Under Texas Civil Practice and Remedies Code Section 71.002, this claim lets certain surviving family members seek compensation for what they lose when a wrongful act, negligence, or default causes their loved one's death.

This claim can include the income the family would have received, the value of household work the person did, and the loss of their guidance and companionship. It can also include mental anguish.

If the death was caused by a willful act or gross negligence, a wrongful death claim can also seek exemplary damages under Section 71.009. These damages punish especially reckless conduct rather than simply repaying a financial loss. The estate may also seek exemplary damages in an appropriate case if the deceased person could have pursued them had they survived.

What Is a Survival Action Under Texas Law?

A survival action is a personal injury claim that continues after the injured person dies, brought on behalf of their estate rather than the family directly. Under Texas Civil Practice and Remedies Code Section 71.021, this type of claim does not end simply because the injured person dies. It survives and can be brought by the person handling the estate.

A survival action covers the time between the accident and the death. This can include medical treatment costs, wages lost before death, and the physical pain the person consciously experienced. It can also include property damage from the accident, since that loss belonged to the person who died.

Who Can File a Wrongful Death Claim or a Survival Action in Texas?

A wrongful death claim may be filed by the deceased person's surviving spouse, children, or parents. If none of them files within three calendar months after the death, the estate's representative generally must file unless all eligible family members ask the representative not to do so. 

A survival action is generally filed by the executor or administrator of the estate. In limited cases, an heir may file if no estate administration is pending, and none is necessary. The two claims do not have to be filed together. A family can pursue a wrongful death claim on its own, and an estate can pursue a survival action on its own, without waiting on the other to move forward.

One key difference between the two claims involves creditors. Under Texas Civil Practice and Remedies Code Section 71.011, money recovered through a wrongful death claim cannot be used to pay the deceased person's debts. A survival action works differently, since its proceeds become part of the estate and can be reached by the deceased person's creditors before anything passes to the heirs.

How Long Do You Have to File a Wrongful Death Claim or Survival Action in Texas?

Texas law limits how long a family has to take action. Under Texas Civil Practice and Remedies Code Section 16.003, a wrongful death claim must generally be filed within two years of the date the person died.

A survival action carries forward the deceased person’s own claim, so its filing deadline is generally based on when that underlying claim accrued, which is often on the date of the injury. The person’s death does not create an entirely new two-year period. However, Texas Civil Practice and Remedies Code § 16.062 may suspend the filing deadline for up to 12 months after death. If an executor or administrator qualifies before those 12 months expire, the suspension generally ends on the date of qualification.

Because the calculation depends on the injury date, death date, appointment of a personal representative, and type of underlying case, the estate should not assume that it has two years from the date of death.

Missing the applicable deadline can prevent the family or estate from recovering compensation, although limited exceptions may extend the filing period.

Contact a McKinney, TX Wrongful Death Lawyer for a Free Consultation

If you've lost a family member and aren't sure whether to file a wrongful death claim, a survival action, or both, a Plano, TX survival action attorney at Burress Injury Law can walk you through the deadlines and what evidence your case will need. We have earned 1,000 five-star reviews from past clients and have awarded $129,500 in scholarships through spring 2026. Call 214-726-0016 for a free consultation.

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