Commonly, lawsuits that involve the death of a plaintiff are called wrongful death lawsuits. But in Texas, personal injury death lawsuits can be filed as a wrongful death cause of action or as a survivorship cause of action. Often, death lawsuits combine both causes of action, but understanding the distinction between wrongful death and survivorship is important.
Who May File the Lawsuit?
A wrongful death claim may be brought ONLY by spouses, children, and parents of the deceased. In situations where the deceased is not survived by a spouse, a child, or a parent, more distant relatives may be entitled to bring a claim via the estate of the deceased for survivorship. A survivorship claim is owned by the estate of the deceased and benefits those who would inherit from the deceased. If the deceased has a will, the beneficiaries of the deceased who may stand to benefit from a survivorship claim may include friends or charities named in the will. Ideally a lawyer will bring a claim for wrongful death because the damages are usually more extensive, but when the deceased is not survived by a spouse, child, or parent, the limited damages of a survivorship claim can be sought.
What Damages Are Available?
Wrongful death causes of action have the broadest array of damages available, including but not limited to damages for loss of relationship, loss of financial and emotional support, pain and suffering, mental anguish, and medical expenses. Wrongful death lawsuits are the common name for death lawsuits because the damages are so unlimited in nature.
Survivorship damages are generally limited to damages that the deceased incurred prior to death. Those include the pain and suffering and mental anguish that the deceased suffered prior to his death, medical bills, and other damages that the deceased would have had if he had survived.
The Instantly Killed Orphan Example
The distinction between wrongful death and survivorship claims is best illustrated with the extreme example of the unmarried, childless orphan who dies instantly from being crushed by a piano dropped out of the window by XYZ Moving Corporation. No claim for wrongful death exists because the deceased has no relative (spouse, child, or parent) entitled to bring the claim. Additionally, no claim for survivorship exists for the estate of the deceased because he died instantly without pain or suffering or medical bills. XYZ Moving Corporation, while negligent, is not able to be sued. While creative arguments for one second of pain and suffering can be made to try to get around this odd situation under Texas law, this example illustrates the limitation of each cause of action.