Wrongful Death vs. Survival Action: What’s the Legal Difference?
When a family member loses their life due to another party’s negligence or misconduct, loved ones are often left with overwhelming grief and difficult legal questions. In Texas, two types of legal claims can arise from such tragic circumstances: wrongful death actions and survival actions.
While these terms are sometimes used interchangeably in conversation, they’re distinct in both purpose and legal application. Understanding the differences can help families make informed decisions about protecting their rights and honoring the memory of their loved one.
At The Gardner Law Firm, P.C., we understand the heartbreak families face after losing a loved one, and we’re committed to standing by them with compassion and guidance. With decades of experience in personal injury and wrongful death cases, we work tirelessly to help families find a path forward during some of life’s most difficult moments.
Here, we will explore the key differences between wrongful death and survival actions under Texas law, who can bring these claims, what damages may be recovered, and how these legal tools interact. For those dealing with the tragic aftermath of a fatal accident, knowing these distinctions can provide clarity during a very difficult time.
What’s a Wrongful Death Action in Texas?
A wrongful death action is designed to compensate the surviving family members of a person who has died due to someone else’s negligence, carelessness, or wrongful act. Under the Texas Wrongful Death Act, certain family members are granted the right to pursue a claim for the losses they personally suffer as a result of their loved one’s death.
This type of claim focuses on the family’s loss rather than the decedent’s. The law recognizes that the sudden absence of a spouse, parent, or child can create both emotional and financial hardships that need to be addressed through compensation.
In many cases, wrongful death claims arise from accidents such as car crashes, medical negligence, workplace injuries, or dangerous products. While each case is unique, the common factor is that another party’s wrongful conduct caused the untimely death.
What’s a Survival Action in Texas?
A survival action, by contrast, allows the deceased person’s estate to pursue the claims that the decedent could have filed if they had survived the incident. This means the survival action focuses on the losses and suffering experienced by the deceased between the time of injury and death.
For example, if a person is seriously injured in a car accident caused by another driver and survives for several days before passing away, the estate may file a survival action. The claim could seek damages for the decedent’s medical bills, lost wages during that time, and the pain and suffering endured before death.
In essence, the survival action “survives” the individual’s death, meaning the right to bring the claim passes to the estate. Any recovery from the action becomes part of the estate and is distributed to heirs or beneficiaries according to Texas probate law.
Who Can File These Claims?
One of the key differences between wrongful death and survival actions lies in who has the legal right to file. Texas law is specific about who may pursue each type of claim.
Wrongful death action: In Texas, the surviving spouse, children, and parents of the deceased may file a wrongful death lawsuit. These family members can file individually or together as a group. If none of these relatives file within three months of the death, the executor or personal representative of the estate may step in—unless the family objects.
Survival action: A survival action may be brought by the personal representative of the deceased person’s estate. In some cases, heirs or beneficiaries may pursue the claim if a representative hasn’t yet been appointed. The proceeds from a survival action don’t go directly to surviving family members as compensation for their losses. Instead, they’re distributed as part of the estate.
This difference underscores the distinct purposes of the two claims. Wrongful death actions aim to address the direct impact on the family, while survival actions focus on the losses experienced by the deceased prior to passing.
What Damages Are Available in Each Claim?
The type of damages recoverable is another significant distinction between wrongful death and survival actions. Understanding what each claim may provide can help families make informed decisions about pursuing legal remedies.
Wrongful Death Damages
Family members may recover compensation for:
Loss of the decedent’s earning capacity
Loss of companionship, comfort, and love
Loss of care, guidance, and support
Mental anguish and emotional suffering
Loss of household services
These damages reflect the financial and emotional impact on surviving family members after the loss of their loved one.
Survival Action Damages
The estate may recover compensation for:
Medical expenses related to the final injury
Lost wages from the time of injury until death
Pain and suffering endured by the decedent
Property damage connected to the incident
Funeral and burial expenses in some cases
The damages available in a survival action are essentially the same as what the decedent could have pursued in a personal injury claim had they survived. For this reason, survival actions are often described as an extension of personal injury law.
How Wrongful Death and Survival Actions Work Together
In many cases, both a wrongful death action and a survival action may be filed in connection with the same fatal incident. While they’re separate legal claims, they complement each other by addressing different types of losses.
For example, consider a situation where a negligent driver causes a collision. The victim lives for a few weeks before passing away due to injuries sustained in the accident. The family may pursue a wrongful death action to recover for their own losses, such as loss of companionship and mental anguish.
At the same time, the estate may pursue a survival action to recover for the victim’s medical bills, lost income, and suffering prior to death.
By pursuing both types of claims, families can achieve a more complete measure of justice and accountability. However, because the damages in each action serve different purposes, they aren’t combined into a single recovery.
Common Misunderstandings About These Claims
Because wrongful death and survival actions can arise from the same tragic event, it’s not uncommon for families to confuse the two. Here are some common misunderstandings:
Thinking only one claim can be filed. In fact, both claims may be filed, as long as the requirements of Texas law are met.
Believing damages automatically go to family members. In survival actions, damages go to the estate, not directly to family.
Confusing wrongful death with criminal charges. A wrongful death action is a civil lawsuit for damages, not a criminal prosecution. Criminal charges may be filed separately by the state.
Assuming compensation is limited. Both wrongful death and survival actions can involve significant damages, depending on the circumstances of the case.
Overlooking the role of personal injury principles. Survival actions are deeply rooted in personal injury law, and understanding that connection helps clarify their scope.
These misunderstandings can add even more stress to an already painful time, which is why clarity is so important. Knowing how these claims differ helps families make informed choices about the steps they may want to take.
How Personal Injury Principles Shape Wrongful Death and Survival Actions
Personal injury law forms the foundation of both wrongful death and survival actions. Wrongful death claims stem from the same types of negligent or wrongful conduct that often give rise to personal injury lawsuits, such as car accidents, medical negligence, or workplace incidents.
Survival actions are essentially personal injury claims carried forward after death, allowing the estate to recover damages that would have belonged to the injured individual.
Because both claims are rooted in personal injury principles, the same elements of negligence typically must be proven: duty of care, breach of that duty, causation, and damages. Demonstrating these elements can involve extensive evidence, such as medical records, accident reports, and expert testimony.
Working with an experienced personal injury lawyer can be critical in gathering and presenting this evidence effectively.
This overlap highlights why many law firms that handle wrongful death and survival actions also focus heavily on personal injury cases more broadly. The underlying legal theories and strategies are closely related, making the guidance of an experienced personal injury lawyer essential for handling these sensitive cases with skill and care.
Contact Us Today
At The Gardner Law Firm, P.C., we know that wrongful death and survival actions serve different but complementary purposes for families in Texas.
A wrongful death claim allows surviving family members to seek compensation for the financial and emotional impact of their loss, while a survival action enables the estate to recover damages the deceased could have pursued through a personal injury claim had they lived. Together, these claims offer a path toward accountability and justice after a preventable death.
We proudly serve Rockport, Texas, and the surrounding areas of Aransas County, Refugio County, San Patricio County, Calhoun County, Victoria County, and beyond. Our attorney is here to provide guidance, compassion, and advocacy during one of life’s most difficult moments.
If you’ve lost a loved one due to negligence, we encourage you to reach out to us today to discuss your options and learn how we can help.