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Austin wrongful death and survival claims

Austin Wrongful Death Lawyer

One death produces two separate Texas lawsuits, and a short statutory list decides who may bring the first one.

Texas does not let just anyone sue over a death. The claim belongs to a short list of people written into the statute, and the money gets divided among them by a jury. Here is who is on that list, what the two separate claims are worth, and what has to happen in the first few weeks.

You are handling a funeral and a claim in the same week. Somebody from an insurance company has already called, or is about to. Somebody in the family has asked whether there is a lawsuit, and somebody else has said it feels wrong to talk about money right now.

Both of those reactions are normal, and neither one has anything to do with the legal question in front of you, which is narrow and has a specific answer. Texas law says who is allowed to bring a claim when a person is killed by somebody else's carelessness. The list is short. If you are on it, there are deadlines that started running the day of the death. If you are not on it, there may still be a claim, and it belongs to somebody else in the family or to the estate.

We handle these cases out of an office on Burnet Road in Austin, in English and in Spanish, and we will tell you plainly whether what happened is a case. That includes telling you when it is not one.

(512) 500-2810

Free consultation, English or Spanish. No fee unless we recover money for you.

Rather have us call you? Fill out the form and we will reach you today.

Who Texas lets bring a wrongful death claim

Texas Civil Practice and Remedies Code § 71.004(a) puts it in one sentence. The wrongful death action is "for the exclusive benefit of the surviving spouse, children, and parents of the deceased." That is the entire list.

Surviving spouse. A husband or wife who was married to the person who died. That includes an informal, or common-law, marriage that can be proved under Texas Family Code § 2.401. It does not end because the couple was separated, and it does not end because a divorce was filed but never finished.

Children. Biological and legally adopted children, of any age. A forty-year-old daughter has exactly the same standing as a six-year-old son. Texas does not require that a child was financially dependent on the parent who died.

Parents. Biological and adoptive parents. Both of them, whether or not they were married to each other and whether or not they lived with the person who died.

Any one of those people can file, and § 71.004(b) says one of them may bring the action for the benefit of all of them. That single subsection causes more family conflict than anything else on this page, and Section 7 below deals with it.

The threshold question underneath all of this is § 71.003(a): the claim exists only if the person who died could have sued for the injury had they lived. A death from an ordinary illness with no negligence behind it produces no claim, no matter who survives. Under § 71.002(b), the person or company is liable when the injury that caused the death came from their "wrongful act, neglect, carelessness, unskillfulness, or default," or from their employee's.

The relatives the statute leaves out

This is the part families do not expect, and it is better to hear it now than three weeks into a claim.

Siblings have no wrongful death claim in Texas. A brother or sister cannot recover for losing a sibling, however close they were, and however much of the practical work of the funeral and the estate they are doing. The same is true of grandparents, grandchildren, aunts, uncles, nieces, nephews and cousins, a fiancé or fiancée, a stepparent or stepchild who was never legally adopted, and a close friend or roommate who was effectively family.

That does not always mean nothing can be done. Three things are worth checking before you accept that answer:

  1. Was there an adoption? A legal adoption puts a stepchild or a stepparent squarely inside § 71.004. An informal arrangement, however long it lasted, does not.
  2. Is there anybody on the list at all? If the person who died left a spouse, a child or a parent, the claim exists and belongs to them, even if they are not the family member handling the arrangements.
  3. Is there a survival claim? The survival action under § 71.021 belongs to the estate, and it passes to the heirs. A sibling who is an heir under Texas intestacy law can end up with an interest in the estate's claim even with no wrongful death standing of their own. Section 4 explains how those two claims differ.

We will look at all three before we tell you there is nothing here. The answer is sometimes still no, and when it is, we say so on the first call instead of opening a file.

Unmarried partners, and when Texas treats a couple as married

If you were living with the person who died and you never had a wedding, your standing turns entirely on whether Texas recognises an informal marriage. Family Code § 2.401(a)(2) sets three elements, and all three have to be there:

  • Agreement. The two of you agreed to be married. Not agreed to move in, not agreed to get married someday. Agreed that you were married.
  • Cohabitation in Texas. After that agreement, you lived together in this state as spouses.
  • Holding out. You represented to other people that you were married.

The third element is where these cases are won and lost, and it is proved with ordinary documents, not testimony about feelings. Tax returns filed as married. An employer's health plan listing a spouse. A lease or a mortgage. A life insurance beneficiary form. A hospital admission record. Text messages and social media where either of you called the other your husband or wife. Family and coworkers who heard it.

There is also a filed alternative. § 2.402 lets a couple sign a Declaration and Registration of Informal Marriage with the county clerk. If one exists, it settles the question under § 2.401(a)(1).

Two limits worth knowing. Under § 2.401(b), if the couple separated and stopped living together and no proceeding is started within two years of that separation, Texas rebuttably presumes there was no agreement to be married. And under § 2.401(d), nobody can be a party to an informal marriage while still legally married to somebody else, which is why an unfinished divorce from a prior relationship matters here.

If you are in this position, start gathering paper today. The documents that prove an informal marriage are the same documents that get closed, cancelled and purged in the weeks after a death.

One death produces two separate lawsuits

Texas splits what happened into two claims with different owners, different damages and different proof. Getting this wrong costs families money, because a settlement that resolves one and ignores the other leaves a whole category of recovery on the table.

Wrongful death claimSurvival claim
StatuteCPRC §§ 71.001–71.012CPRC § 71.021
Who owns itThe surviving spouse, children and parentsThe estate of the person who died
Whose loss is measuredThe beneficiaries' own lossesWhat the person who died went through
Typical damagesLost financial support, lost household services, lost care, counsel, advice, companionship and society, the beneficiaries' own mental anguishConscious physical pain and mental anguish before death, medical bills incurred, funeral and burial expenses
Who is paidThe beneficiaries directlyThe estate, then distributed under the will or by intestacy
Exposed to the decedent's creditorsNo — § 71.011Yes, it is an estate asset
Needs an estate openedUsually noUsually yes

The last two rows are the practical ones. § 71.011 says damages recovered in a wrongful death action "are not subject to the debts of the deceased." Survival proceeds carry no such protection, because they belong to the estate and an estate pays its creditors. Two dollars recovered on the same day can be treated completely differently depending on which claim they came from.

The two claims are usually filed together, in the same lawsuit, against the same defendant. They are still two claims, and a competent settlement allocates between them on purpose.

The survival claim, and what your family member went through before they died

Section 71.021 says a personal injury cause of action "does not abate because of the death of the injured person." Whatever claim your family member had the moment before they died survives them and passes to the heirs, the legal representatives and the estate.

This is the claim that asks a hard question: what did they experience between the injury and the death? Texas allows recovery for conscious pain and mental anguish during that window, and the length of the window drives the value.

  • Death at the scene, no evidence of consciousness. The survival claim is usually limited to medical and funeral expenses. Some cases have almost no survival component at all, and we will tell you that rather than promise one.
  • Minutes to hours. EMS run sheets, the trauma bay record, and bystander accounts establish whether the person was awake, whether they spoke, whether they were in pain. A 911 recording sometimes answers it directly.
  • Days to weeks in an ICU. Now there is a documented medical course, a chart full of pain scores and sedation orders, and often a period where the person knew what was happening to them. This is the largest survival component we see.

The proof is documentary and it is time-sensitive. EMS records, the emergency department chart, nursing notes, the code sheet, the autopsy report. We send those requests in the first weeks, and we ask the family what they saw, because a spouse who was in the room is a witness to consciousness in a way no record is.

The survival claim needs somebody with legal authority to bring it. Section 8 below covers what opening an estate involves and when a family can skip it.

How one verdict gets split between a spouse, the children and the parents

There is no formula. Texas does not give the spouse a half and split the rest.

Section 71.010 does two things. Subsection (a) lets the jury award damages "in an amount proportionate to the injury resulting from the death." Subsection (b) says the damages awarded "shall be divided, in shares as found by the jury in its verdict, among the individuals who are entitled to recover and who are alive at that time."

So the jury decides the shares, beneficiary by beneficiary, based on what each one actually lost. A charge in a case with a widow, two adult children and a surviving mother asks the jury separately about each of them.

What moves those numbers in practice:

  • Financial dependence. A spouse who relied on the income and a minor child at home are in a different position from an adult child with their own household.
  • The actual relationship. Frequency of contact, caregiving in either direction, whether they lived together, how long the estrangement lasted if there was one.
  • Age and remaining years. A parent's loss of an adult child is measured over the parent's remaining life expectancy, which is shorter than a young spouse's.
  • Services that were really being provided. Childcare, transport to appointments, home repair, running a family business. These are proved with ordinary testimony and they are worth money.

Most cases settle rather than reach a verdict, and the same analysis governs. The lawyers allocate the settlement among beneficiaries and, where a minor is involved, the court reviews it. Section 9 covers that.

When the family does not agree

Section 71.004(b) allows any one beneficiary to file for the benefit of all of them. The claim then covers people who never agreed to it, and their shares get decided in a case they did not choose to bring.

Families arrive at our office in this position more often than you would think. The common versions:

An estranged spouse and adult children. They were separated for years, never divorced, and the children handled everything at the end. She is still the surviving spouse under the statute and she is still a beneficiary. What the separation affects is her share, not her standing.

Children from two marriages. One set has the death certificate and the funeral receipts, the other set has a lawyer, and neither is speaking to the other.

Parents who want to sue and a spouse who does not. Both are beneficiaries. Either can start the case.

Somebody has already signed something. An adjuster reached one beneficiary early with a release. A release signed by one beneficiary does not extinguish the claims of the others, and it is a mess worth untangling immediately rather than later.

There is one more thing to know before hiring anybody. A single lawyer cannot always represent every beneficiary, because their interests can genuinely conflict once the shares are being decided. Sometimes the right answer is separate counsel for one branch of the family and one joint case against the defendant. We will say so if that is the situation, and we will say it before you sign anything.

Three calendar months, and what the estate's representative has to do

People call this the 90-day rule. The statute uses months. Section 71.004(c):

"If none of the individuals entitled to bring an action have begun the action within three calendar months after the death of the injured individual, his executor or administrator shall bring and prosecute the action unless requested not to by all those individuals."

Three things follow from that sentence.

It is a duty, not an option. The word is shall. If the beneficiaries have not started the case in three months, the executor or administrator is supposed to bring it.

All of the beneficiaries can switch it off. The executor stands down only if all the individuals entitled to bring the action ask them not to. One beneficiary alone cannot stop it.

It is not the deadline. Missing the three months does not end anybody's claim. The limitations deadline is separate and it is much more serious.

On limitations. CPRC § 16.003(b) requires suit within two years, and the cause of action accrues on the death of the injured person. When somebody is hurt in March and dies the following January, your two years runs from January, which is why an old incident date is not by itself a reason to assume the case is gone.

Do you have to open an estate? For the wrongful death claim alone, usually no. The beneficiaries own that claim personally. For the survival claim, you need somebody with authority to act for the estate, and Texas gives families two lighter options than a full administration:

  • Small estate affidavit, Estates Code Chapter 205. Available where the person died without a will, thirty days have passed, no application for a personal representative is pending or granted, and the estate assets excluding homestead and exempt property do not exceed $75,000.
  • Independent administration, Estates Code Chapter 401. Where the will provides for it, or where all the distributees agree to it, an independent executor or administrator is appointed and then runs the estate without ongoing court supervision. Chapter 401.003 adds one step for an intestate estate: the heirs have to be determined first in a heirship proceeding.

In Travis County that work goes to Probate Court No. 1 or Probate Court No. 2, both at 200 W. 8th Street in downtown Austin. We coordinate with a probate lawyer where a case needs one, and plenty of them do not.

Minor beneficiaries, and why a judge has to sign off on their share

A child under eighteen cannot settle their own claim, and a parent cannot settle it for them privately. A Texas court reviews and approves the settlement of a minor's claim before the money moves.

The guardian ad litem. Texas Rule of Civil Procedure 173 governs the appointment of a guardian ad litem, and the classic trigger is a conflict: the adult representing the child is also a beneficiary competing for a share of the same settlement. A surviving parent who is receiving part of the money is not in a position to argue the child should receive more of it. The ad litem is a separate lawyer appointed to look only at the child's interest, who reviews the allocation and reports to the judge. Their fee is a case expense.

Where the money goes afterward. Not into a parent's bank account. The common structures in Texas:

  • A Section 142.005 trust. Texas Property Code § 142.005 lets the court direct the funds into a trust at a financial institution, with the child as sole beneficiary and the trustee authorised to make distributions for health, education, support and maintenance. Note the built-in end date: for a minor who is not disabled, the trust terminates on death, at an age stated in the trust, or on the beneficiary's 25th birthday, whichever comes first.
  • The court's registry, holding the money until the child turns eighteen.
  • A structured annuity paying out on a schedule the court approves.
  • A guardianship of the estate, where the amount is large enough to justify the ongoing accounting.

A separate clock for the child. CPRC § 16.001 says the time a person is under a legal disability, which includes being younger than eighteen, is not counted in a limitations period. A minor beneficiary's own claim is treated differently from an adult's on timing. Do not use that as a reason to wait. Evidence disappears on the same schedule for everybody, and the adults' claims are running out in the meantime.

Exemplary damages, the statutory cap, and the line in the Texas Constitution

Most of what a family recovers is compensation. Exemplary damages are different. They punish conduct, and Texas death cases are one of the few places they regularly come into play. This is also the point most commonly botched in writing about Texas wrongful death, so here is the sequence.

What has to be proved

CPRC § 41.003(a) allows exemplary damages only where the claimant proves by clear and convincing evidence that the harm resulted from fraud, malice or gross negligence. That is a higher standard than the ordinary more-likely-than-not test used for everything else in the case. Under § 41.003(d), the jury has to be unanimous both on liability for exemplary damages and on the amount.

Separately, CPRC § 71.009 states the rule for death cases directly: "When the death is caused by the wilful act or omission or gross negligence of the defendant, exemplary as well as actual damages may be recovered."

The statutory cap

CPRC § 41.008(b) caps an exemplary award against a defendant at the greater of:

  • two times economic damages, plus non-economic damages found by the jury up to $750,000; or
  • $200,000.

Under § 41.008(e), none of that may be disclosed to the jury. They set a number without being told the ceiling, and the court applies it afterward.

Where the cap stops applying

By statute. § 41.008(c) removes the cap entirely for conduct described as a felony in a listed set of Penal Code sections. Two of them matter constantly in death cases: § 49.08, intoxication manslaughter, and § 19.02, murder. And read the qualifier carefully — the statute requires the conduct to have been committed knowingly or intentionally "except for Sections 49.07 and 49.08." The knowing-or-intentional requirement does not apply to intoxication manslaughter. A drunk driving death that fits § 49.08 sits outside the cap by the plain terms of the statute.

By the Constitution. Article XVI, § 26 of the Texas Constitution has said since 1876:

"Every person, corporation, or company, that may commit a homicide, through wilful act, or omission, or gross neglect, shall be responsible, in exemplary damages, to the surviving husband, widow, heirs of his or her body, or such of them as there may be, without regard to any criminal proceeding that may or may not be had in relation to the homicide."

That is a constitutional right to exemplary damages for a death, running to the surviving spouse and the heirs of the body. The argument that follows is that a statute cannot cap what the constitution guarantees, and it is a live argument that gets briefed in Texas death cases. It has not been settled by the Texas Supreme Court in a way that ends the debate, so treat it as a position to be argued rather than a rule you can bank. Any page that tells you flatly that the cap never applies to a wrongful death case is telling you more than the law currently supports.

The last clause of § 26 is settled and useful on its own: the civil right exists "without regard to any criminal proceeding." § 71.006 says the same thing from the other direction — the civil action is not precluded because the death was caused by a felonious act or because a criminal case is pending. You do not have to wait for a verdict in the criminal court.

One place they are unavailable entirely: a claim under the Texas Tort Claims Act. CPRC § 101.024 says the chapter "does not authorize exemplary damages." Section 13 covers what that means for a death involving a government defendant.

More on this category of damages: /compensation/punitive-damages

Autopsies, medical examiner records and the death investigation

If your family member died suddenly, violently or unexpectedly in Travis County, the Travis County Medical Examiner probably had jurisdiction, and probably had it whether or not anybody asked you.

TCME's authority comes from Texas Code of Criminal Procedure art. 49.25, and its own annual report lists the categories: a person who is killed or dies an unnatural death, a death where the circumstances suggest unlawful means, a suicide or suspected suicide, a death within twenty-four hours of hospital admission, a death with no attending physician able to certify a cause, and a death in custody. Consent is not part of the test. This is a public investigation, not a hospital autopsy the family requests.

Not every case is autopsied. TCME's report states that the Medical Examiner may perform a complete autopsy or an external examination only, that partial autopsies are not performed, and that blood and vitreous fluid are collected in all autopsies and external examinations other than skeletal remains, with toxicology run on most autopsy cases.

Why this matters to your claim. The autopsy report, the toxicology results and the investigator's report are often the most important records in the file. They can establish the mechanism of injury, whether the other driver was impaired, whether a defect in a machine caused the injury, how long the person survived, and whether a hospital's account of events matches the body.

Getting the records. The Travis County Medical Examiner takes records requests by mail at Attn: Record Request, 7723 Springdale Road, Austin, Texas 78724, by email, and in person, and asks requesters to be specific about what they want. Autopsy reports have their own request form. The office is at (512) 854-9599. Requests to the Medical Examiner do not reach other county departments, so a police report, a 911 recording and an EMS run sheet are separate requests to separate agencies, all of which have their own retention schedules.

What else is being collected right now, by somebody else. A traffic homicide unit is working a fatal crash. OSHA has an investigation window on a workplace death. A hospital risk management department has already opened a file. Some of that material is preserved by law and some of it is overwritten on a timer. Section 15 lists what we send in the first two weeks.

Source: Travis County Medical Examiner, Annual Report 2025 · Records request page

The funeral, the bills, and what actually gets reimbursed

Families ask about this on the first call, and the answer has moving parts.

Funeral and burial expenses. These are recoverable, and they belong to the survival claim, because they are a cost of the death charged to the estate. Keep the itemised invoice from the funeral home, the cemetery contract, the headstone order and the receipts for the service. Not the flowers your cousin bought. Documented, paid expenses.

Medical bills from the final illness or injury. Also survival damages. Get the itemised statements, not the summary balance letters. Air ambulance, emergency department, ICU, surgery, and anything billed after death.

Whether the hospital or an insurer gets paid back. Frequently yes, and this is where people get surprised. A health insurer, Medicare, Medicaid, an ERISA plan or a hospital lien can each assert a right to be repaid out of a recovery. Those claims get identified, verified and negotiated before anything is distributed, and reducing them is real money in the family's pocket. Anyone who tells you the gross settlement number without telling you what is being repaid out of it is not telling you what you are getting.

Creditors of the person who died. Here the two claims diverge sharply, and it is the reason Section 4 matters. CPRC § 71.011 says damages recovered in the wrongful death action are not subject to the debts of the deceased. Survival proceeds are an estate asset and are exposed to estate creditors in the ordinary way.

What we do not do. We do not tell a family what a life is worth in the first week, because nobody can do that honestly at that stage and the number moves as records come in. What we can tell you early is what categories are in play, which ones are documented, and what is missing.

Category detail for the rest: /compensation/wrongful-death-damages · /compensation/loss-of-consortium · /compensation/medical-expenses

When a government employee or government property is involved

A death caused by a city truck, a county vehicle, a state employee, a public hospital or a dangerous condition on a public road runs on different rules and a much shorter clock.

Notice in six months, and often far less. CPRC § 101.101(a) entitles a governmental unit to notice of the claim no later than six months after the incident, reasonably describing the injury, the time and place, and the incident. Subsection (b) ratifies shorter deadlines in a city's own charter, and Texas home-rule cities do impose them — some measured in weeks. Subsection (c) excuses the notice requirement where the governmental unit already has actual notice that a death has occurred, which comes up constantly in death cases and which we never rely on as a substitute for serving proper notice.

The caps, stated correctly. CPRC § 101.023 sets different numbers for different defendants, and they are widely misreported:

DefendantPer personPer occurrence
The state$250,000$500,000
A municipality (§ 101.023(c))$250,000$500,000
Other units of local government (§ 101.023(b))$100,000$300,000
Emergency service organisations (§ 101.023(d))$100,000$300,000

A county, a school district or a hospital district falls in the third row. A city falls in the second.

What is even inside the Act. § 101.021 waives immunity in a narrow band: death caused by an employee's negligent operation or use of a motor-driven vehicle or equipment, and death caused by a condition or use of tangible personal or real property. Plenty of conduct by a government employee falls outside both.

No exemplary damages at all. § 101.024 states that the chapter does not authorize them. Everything in Section 10 above is unavailable against a governmental unit, which is one reason identifying a private contractor or another responsible party early can change the value of a case entirely.

If any part of what happened involves a government vehicle, a public road condition, a public hospital or a public employee, tell us on the first call. This is the one situation on this page that is measured in weeks.

What the Travis County death records show

Every figure in this section comes from a government publication we pulled on 5 September 2026. Each one names its dataset, its year and what it does and does not count, so you can open the source and re-run it yourself.

Travis County Medical Examiner, 2025

Stat cards

7,716Cases reported to the Travis County Medical Examiner in 2025, from Travis County and the 49 other Texas counties the office serves.
1,593Travis County deaths that fell under Medical Examiner jurisdiction and were physically examined at TCME in 2025.
691Of those, the number ruled accidental — 43 percent, the largest single category.
198Motor-vehicle-related fatalities in Travis County in 2025 among cases TCME examined.

Manner of death, Travis County cases examined at TCME, 2025

MannerCasesShare
Accident69143%
Natural58237%
Suicide19913%
Homicide714%
Undetermined473%
Fetal death30%
Total1,593100%

Motor-vehicle-related fatalities, Travis County, 2025

Road userDeathsShare
Automobile occupant11960%
Pedestrian4020%
Motorcycle2714%
Cyclist63%
Scooter53%
Moped10%
Total198100%

Two details inside the automobile figure. Of the 119 automobile fatalities, 47 were not wearing a seatbelt, 45 were, and it was unknown for 27. Eighty-five of them were the driver and 31 were passengers.

What these numbers are, and what they are not. They count deaths that fell under Medical Examiner jurisdiction and were examined at TCME. They are not all deaths in Travis County. Most people who die here are certified by a treating physician and never come to the Medical Examiner at all. The out-of-county cases TCME accepted in 2025 — 841 of them — are excluded from every Travis County figure above.

Two other numbers, from two other agencies

155 people were killed in traffic crashes in Travis County in 2024, across 139 fatal crashes and 15,872 crashes overall. That is TxDOT's own county table, built from CRIS, covering every road in the county. It uses a different definition and a different year from the TCME figure above, so the two are not comparable to each other, and we have said which is which.

557 workers were killed on the job in Texas in 2024, a rate of 3.9 per 100,000 full-time equivalent employees, per the Texas Department of Insurance, Division of Workers' Compensation, in its Census of Fatal Occupational Injuries compiled with the federal Bureau of Labor Statistics. A death at work runs through the workers' compensation system first, and the analysis lives on our Austin workplace injury page, not here.

For scale, the CDC's National Center for Health Statistics ranks accidents third among leading causes of death in Texas in its Stats of the States profile, using final 2024 data.

What is deliberately absent from this page

There is no count of wrongful death lawsuits filed in Travis County, because no court or agency publishes one. There is no dollar figure for the economic value of a human life, because the federal tool that produces those estimates cannot be queried in a way a reader could reproduce. There is no county-level cause-of-death breakdown from CDC WONDER, because WONDER's data service returns national figures only and its interactive tool cannot be scripted; we used the Travis County Medical Examiner's own published counts instead, which are more local and come from a single downloadable document. And there are no case results on this page at all.

Sources

The first two weeks

You do not need to do all of this. You need somebody to, and the order matters because some of it expires.

  1. Order ten certified death certificates, not two. Every insurer, bank, employer and pension administrator wants an original. Reordering later costs weeks.
  2. Ask the Travis County Medical Examiner whether the case is theirs, and file the records request for the autopsy report and toxicology as soon as the case number exists. Reports take time to finalise; the request should be in the queue before then.
  3. Get the incident report number from the agency that responded, and put in the request for the report, the 911 audio and any body-worn or dash camera footage. Audio and video retention is measured in days at some agencies.
  4. Send preservation letters immediately to anyone holding evidence that overwrites itself. A truck's electronic control module and driver logs. A business's video system. A machine that should not be repaired or scrapped. A vehicle sitting in a tow yard on daily storage charges, which is often the most important physical evidence in the case and the first thing sold.
  5. Do not authorise the vehicle to be released or salvaged, and tell us before the insurer takes it.
  6. Write down who was there. Names and phone numbers of everyone at the scene, at the hospital, on the shift. Memories fade and people move.
  7. Collect the documents that prove the relationship. Marriage licence, birth certificates, adoption decree, or the paper trail described in Section 3 if you were informally married. This is what establishes standing.
  8. Stop talking to the other side's adjuster. You can tell them you are represented and hang up. Do not give a recorded statement, do not sign a medical authorisation, and do not sign a release.
  9. Do not post about it. Assume the defence reads everything public.
  10. Find out if there was a will, and whether anyone has been named executor. It determines who brings the survival claim.

If step four needs to happen today and nobody in the family can do it, call us and we will send the letters.

What our fee is on a death case, and what we advance

We work on a contingency fee. There is no hourly bill, no retainer, and no invoice arriving while you are arranging a funeral. If there is no recovery, you owe us no fee.

The part worth understanding on a death case is case expenses, which are separate from the fee and which we advance out of our own pocket.

A wrongful death case is one of the most expensive kinds of case to prove, because you cannot put the injured person on the stand. What the person would have earned, what they contributed to the household, and how the death happened all have to be reconstructed by somebody else. In practice that means:

  • A collision or scene reconstruction engineer, on a traffic or workplace death, working from the physical evidence and the vehicle's recorded data.
  • A forensic economist, to calculate lost earning capacity and the value of lost household services over the years the person would have worked and lived.
  • Certified records from every treating provider, the medical examiner and the responding agency, plus the fees each of them charges.
  • Depositions and transcripts, including the defendant, the employer's corporate representative, and the treating physicians.
  • A guardian ad litem's fee, where a minor beneficiary is involved.

Note what this list does not contain. There is no life care plan and no attendant care projection here, because those measure what a living person will need for the rest of their life. This case measures what the survivors lost and what the person went through before they died. Different experts, different math.

We advance all of it. Expenses are reimbursed from the recovery at the end, and before you sign anything we will walk you through the fee, the expected expenses, and how the money is divided among beneficiaries so nothing about the final number is a surprise.

Who would be working on this

  • Israel Ruiz Medina — Founding Partner. Texas Bar No. 24130487. J.D., Baylor University School of Law. → /attorneys/israel-medina
  • Rikki Olivia Medina — Founding Partner. Texas Bar No. 24144569. J.D., Baylor University School of Law. → /attorneys/rikki-medina

Questions families ask us

Eighteen questions families ask us in the first week, answered for this page.

My brother died and our parents have both passed away. Can I bring the case?

Not as a wrongful death claim. Texas limits that claim to the surviving spouse, children and parents under CPRC § 71.004, and siblings are not on the list. Two things are still worth checking. If your brother left a spouse or children, the claim exists and belongs to them. And the survival claim under § 71.021 belongs to his estate, so if you are an heir you may have an interest in that claim even with no wrongful death standing of your own. Call us and we will work out which of those applies.

We lived together for eleven years and never married. Do I have a claim?

Possibly, and it depends on whether Texas recognises an informal marriage. Family Code § 2.401 requires an agreement to be married, living together in Texas as spouses after that agreement, and representing to other people that you were married. Start collecting the proof today: joint tax returns, a spouse listed on an employer's health plan, a lease or mortgage, a life insurance beneficiary form, hospital records, and messages where either of you used the word husband or wife.

My husband's adult children from his first marriage want their own lawyer. Can they do that?

Yes. Section 71.004(b) lets any one of the beneficiaries bring the action, and they can be represented separately. It is common where a family is fractured, and it is sometimes the right answer even when everyone is getting along, because the beneficiaries are competing for shares of the same recovery. The case still proceeds against the defendant as one lawsuit.

Nobody has filed anything and it has been four months. What now?

Section 71.004(c) applies. Once three calendar months pass with no beneficiary having started the action, the executor or administrator of the estate is supposed to bring and prosecute it, unless all of the beneficiaries ask them not to. Missing the three months does not end anyone's claim, and there is still time. It does mean the estate's representative now has a duty of their own.

Do we have to open a probate estate?

For the wrongful death claim, usually no. The beneficiaries own that claim personally. For the survival claim you need someone with authority to act for the estate, and Texas offers lighter paths than a full administration: a small estate affidavit under Estates Code Chapter 205 where the estate is under $75,000 excluding homestead and exempt property, or an independent administration under Chapter 401 where the will provides for it or all the distributees agree. In Travis County that runs through Probate Court No. 1 or No. 2 at 200 W. 8th Street.

My father died eight months after the crash that hurt him. When does the two-year clock start?

On the date of death, not the date of the crash. CPRC § 16.003(b) says the cause of action for an injury resulting in death accrues on the death of the injured person. That distinction rescues cases that people assume are already gone.

The medical examiner did an autopsy and nobody asked us. Was that allowed?

Yes. The Travis County Medical Examiner's jurisdiction comes from Texas Code of Criminal Procedure art. 49.25 and covers unnatural, violent, sudden and suspicious deaths, deaths within twenty-four hours of hospital admission, and several other categories. Family consent is not part of the test. It is a public death investigation rather than a hospital autopsy anyone requested, and the report it produces is frequently the strongest evidence in the civil case.

How do we get a copy of the autopsy report?

Through the Travis County Medical Examiner's records request process. Requests go by mail to Attn: Record Request, 7723 Springdale Road, Austin, Texas 78724, by email, or in person, and autopsy reports have their own request form. Be specific about what you want. A police report, 911 audio and EMS records are separate requests to different agencies. We handle all of it once you hire us.

Can my stepchildren recover?

Only if they were legally adopted. Texas reads "children" in § 71.004 to mean biological and legally adopted children. A stepchild raised in the household for twenty years without an adoption has no wrongful death claim, which is a harsh result and a real one. Look for adoption paperwork before you conclude either way.

My mother is the surviving spouse and my sister and I are the children. Do we split it in thirds?

No. There is no formula in Texas. Under § 71.010(b), the damages are divided in shares found by the jury, based on what each beneficiary actually lost. A financially dependent spouse and an independent adult child are usually valued very differently. In a settlement, the lawyers allocate and, where a minor is involved, a court reviews the allocation.

Will my husband's creditors take the money?

The wrongful death recovery is protected. CPRC § 71.011 says damages recovered in a wrongful death action are not subject to the debts of the deceased. The survival recovery is different, because it belongs to the estate and an estate pays its creditors. That is one of several reasons the two claims get allocated deliberately rather than lumped together.

The driver has been charged with intoxication manslaughter. Do we have to wait for the criminal case?

No. CPRC § 71.006 says the civil action is not precluded because the death was caused by a felonious act or because a criminal proceeding is pending, and article XVI, § 26 of the Texas Constitution says the same thing. The two cases run on separate tracks with different standards of proof. The criminal charge also matters for a second reason: § 41.008(c) lists intoxication manslaughter under Penal Code § 49.08 among the offences that remove the statutory cap on exemplary damages.

Will the defence tell the jury I am dating someone?

No. Section 71.005 is unusually specific about this. The defence is prohibited from directly or indirectly mentioning or alluding to a common-law marriage, an extramarital relationship, or the marital prospects of the surviving spouse. An actual ceremonial remarriage is admissible if it is true. Almost nobody tells surviving spouses this and it is worth knowing early.

My daughter is nine. When does she actually get her share?

Not at the settlement. A Texas court approves any settlement involving a minor, and Rule 173 provides for a guardian ad litem where the adult representing her has an interest that competes with hers, which is the usual situation when a surviving parent is also a beneficiary. The money then goes into a structure the court approves. A common one is a trust under Texas Property Code § 142.005, which for a minor who is not disabled terminates at an age stated in the trust or on her 25th birthday, whichever comes first.

My husband was killed at work. Does workers' compensation mean we have no case?

Not necessarily, and the answer depends on whether the employer carried workers' compensation and whether anyone other than the employer contributed to the death. Texas has a narrow gross-negligence exception for a death claim against a subscribing employer, and third parties on a job site are often liable outright. That analysis belongs on our Austin workplace injury page, where it is worked through properly.

Does immigration status affect this?

No. A person's immigration status does not determine whether they can bring a wrongful death claim in Texas, and it does not determine whether the person who died had a claim. We do not ask about it, we do not need it to open a case, and it does not go in a pleading. The whole consultation can be in Spanish.

How much is a case like ours worth?

Nobody can tell you responsibly in the first week, and we will not pretend otherwise. The number depends on what the records show about the final hours, what the person earned and contributed at home, how many beneficiaries there are, what insurance exists, and whether the conduct opens the door to exemplary damages. Anyone giving you a figure before they have seen the file is guessing at you. What we will tell you early is which categories are in play and what is missing.

Do we have to come to your office in Austin?

No. Most of a case runs by phone, text and email, and we come to you when something has to happen in person. Our office is on Burnet Road in Austin and you are welcome there. Nobody needs to drive across town to open a file or get an update on one, and families outside Travis County are handled the same way.

Talk to us about what happened

If somebody in your family was killed by another person's carelessness, the first thing to find out is whether you are one of the people Texas allows to bring the claim, and the second is what needs preserving before it disappears. Both of those take one phone call.

Call (512) 500-2810

Medina & Medina Personal Injury Attorneys

6701 Burnet Rd #132, Austin, TX 78757

(512) 500-2810

info@winner.law

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This page is general information about Texas law. It is not legal advice, and reading it does not create an attorney-client relationship. Every case turns on its own facts. Past results do not guarantee future results.

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