Wrongful Deaths and Setting Up an Estate in Texas

If you have recently lost a loved one due to someone else’s negligent or reckless actions, you likely have urgent questions about your legal rights and how to pursue compensation for the economic and emotional hardships that have resulted from their death. One of the most common questions families ask is whether they need to set up an estate before filing a wrongful death lawsuit. The answer depends on exactly what type of claim is being filed — and understanding the distinction between a wrongful death claim and a survival claim is essential to getting that answer right. Contact our attorneys here.

What Is a Wrongful Death Case in Texas?

Texas law gives families the right to recover compensation when a loved one’s death is caused by another party’s negligent or reckless conducthttps://www.carabinshaw.com/san-antonio-wrongful-death-attorney.html
. The legislature and courts have adopted and interpreted laws that define both who is eligible to bring these claims and what categories of damages are recoverable. Damages available under Texas wrongful death law fall into two broad categories: economic damages — financial losses like lost income, benefits, and household services the deceased would have provided — and non-economic damages — the emotional and relational losses like grief, loss of companionship, and loss of parental guidance.

Not every family member is eligible to assert a wrongful death claim under Texas law. Specifically, the right to file is limited to the surviving spouse, children, and parents of the deceased. Other relatives — siblings, grandparents, extended family — do not have standing to bring independent wrongful death claims under the Texas statute, regardless of how close their relationship with the deceased may have been.

Do You Need to Set Up an Estate Before Filing a Wrongful Death Claim?

In short — no. Texas law does not require a person to establish an estate for their deceased family member before filing a wrongful death lawsuit. This is because wrongful death claims are personal to the eligible family members themselves — they are not claims made on behalf of the deceased. The surviving spouse, children, or parents have been personally wronged by the defendant’s negligence, and their right to file is independent of the deceased’s estate.

To illustrate the point: if a family relied on the financial and emotional support of a loved one who was killed in a car accident by a drunk driver, the eligible family members have their own independent claims for the financial support they lost, the companionship they have been deprived of, and the grief and suffering they have experienced. Those claims belong to the living family members — not to the deceased’s estate. Under Texas wrongful death laws, no estate is required to assert those claims.

When an Estate Is Required — The Survival Claim

While an estate is not required for a wrongful death claim, there is a separate type of claim — called a survival action — that does require establishing an estate. A survival claim is designed to compensate the deceased for the injuries and losses they personally suffered before death. Because the deceased is no longer alive to assert these claims themselves, their estate steps in as the legal representative of their interests and pursues the claims on their behalf.

To illustrate: imagine that a person suffered severe injuries caused by a defective product and spent several months in the hospital before eventually dying from those injuries. During those months, the person experienced significant pain, suffering, disfigurement, and mental anguish. Had they survived, they would have had the right to file a personal injury lawsuit to recover for all of that harm. A survival action preserves that right — allowing the estate to file on their behalf and recover the compensation the deceased could have claimed if they had lived. Setting up an estate is a prerequisite to bringing a survival action, because the estate is the legal entity with standing to assert the deceased’s own personal claims.

In many serious cases, a wrongful death claim filed by the eligible family members and a survival action filed by the estate proceed simultaneously, each recovering distinct categories of damages that together reflect the full scope of harm caused by the defendant’s conduct.

Why Experienced Wrongful Death Attorneys Are Essential

As the distinction between wrongful death claims and survival actions illustrates, these cases involve legal complexities that can significantly affect the total compensation a family recovers. Retaining experienced wrongful death attorneys is absolutely essential to ensuring that every available claim is identified, properly filed, and pursued to its full value. Missing a survival claim because an estate was never established, or failing to identify all eligible wrongful death claimants, can result in substantial compensation going unclaimed.

Our experienced Texas wrongful death attorneys are available to speak with families any time — day or night — for a free consultation. We handle every case on a contingency fee basis, which means no fees unless we recover compensation for your family. If you would like to learn more about how our firm can help you pursue justice and obtain the full compensation your family deserves, we encourage you to reach out today.

This blog was posted by The Carabin Shaw Law Firm, principal office in San Antonio, Texas.