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Who may sue, and be sued for a wrongful death claim?

The cause of action for wrongful death has been in existence long enough that the Texas legislature has been able to address through statutory law many of the situations in which wrongful death claims can arise.

As a general rule, if a person dies as the result of the wrongful act of another, and the decedent would have had a cause of action against the person who caused the death had he or she survived (or been born alive, in the case of a wrongful death lawsuit brought on behalf of an unborn child), then the surviving parents, spouse and children of the decedent are eligible to commence a lawsuit for wrongful death.

But what happens if the person being sued for causing the wrongful death dies before the wrongful death action can be started, or before a judgment is reached? What happens if the decedent has no surviving parents, spouse or children, can his or her siblings file a wrongful death action? What if the surviving relatives who are able to file a wrongful death lawsuit fail or refuse to do so? Does that preclude the estate of the deceased from filing a lawsuit?

The provisions of the Texas wrongful death statute cover all of the above questions, and more. Thus, for example:

  • If the prospective or actual defendant dies, then that person's estate may still be sued for wrongful death.
  • If the decedent has only surviving siblings and no parents, spouse or children, the siblings are not entitled to bring a wrongful death lawsuit.
  • If the surviving parents, spouse or children of the decedent do not bring a wrongful death action within three months after the date of the decedent's death, then the executor or administrator of the decedent's estate is required by law to commence such a lawsuit, unless all of the above surviving relatives direct otherwise.

The above scenarios are only some of the detailed situations covered by the statute governing wrongful death in this state, and should give an idea of how complicated this area of law can be; this post cannot address all of the various possibilities.

Anyone who has lost a loved one due to the negligent or other wrongful act of another person should consult with a personal injury attorney to identify whether and how a wrongful death action can be brought and what forms of recovery may be available.

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Marynell Maloney Law Firm, PLLC
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