After the death of a loved one due to the negligent actions of others, the surviving relatives may wonder who gets the money in a wrongful death settlement. Here in Texas, your Last Will & Testament (or the Estates Code, if you have no will) determines how your assets are distributed when you die. But what if your death was caused by negligence? Who can make a claim, and for how much? Here are some of the answers. For a full discussion of your legal rights after the death of a loved one due to negligence, contact our law firm today at (713) 973-8888.
Who Can Recover for Wrongful Death?
Texas wrongful death law allows only spouses, parents, and children to sue for wrongful death. No other family members, such as grandchildren or siblings, have a claim. Adopted children have a claim, if the adoption was finalized in court. Step-children have no claim. Spouses married by informal or “common law” marriage have a claim, although there are special considerations that apply. There may be questions concerning “lost” relatives, including children from prior relationships (marriages or otherwise). These difficult questions related to who gets the money in a wrongful death settlement are best discussed with a lawyer.
Children are a particular concern in wrongful death claims, as minors cannot act on their own behalf, including hiring lawyers or filing lawsuits. If a child is living with both parents, and one parent dies, then the surviving parent is the person authorized to hire a lawyer for that child. But what if the parents are divorced, and the custodial parent dies? Who can act for the child? In many cases, the surviving parent becomes the guardian of the child in that situation. However, the answer may be more complex, as there are times when there is no other parent (due to death, or the mother being a single mother), or the other parent may be unavailable. In that event, the custodial parent may have designated a guardian in her will, but that designation is not necessarily binding. It may be necessary for a court to designate the guardian of that child. If your family is in this situation, call us and we can help you navigate your way through this difficult time.
How Does a Wrongful Death Settlement Work?
If you wonder how a wrongful death settlement works, it is important to first understand what damages can be recovered for wrongful death. Dependent spouses and minor children may recover for lost financial support. Adults may recover for lost financial support from deceased family members only if they prove a reasonable expectation of support. Loss of financial support often requires a financial analysis of how much the deceased person was earning and would have contributed to the claimant’s support. This may involve accountants who serve as expert witnesses.
All wrongful death claimants may recover for mental anguish (defined in the law as “emotional pain, torment, and suffering”) and loss of companionship and society (defined as “loss of the positive benefits flowing from the love, comfort, companionship, and society” of the deceased person). These “non-economic damages” are more subjective and depend on evidence of the quality of the relationship and the depth of the loss. People who had a distant or strained relationship with the deceased may be entitled to a smaller damage recovery than others who were close to the deceased. Some family members are closer than others. This can create substantial conflict and disharmony. If your family is in this situation, it is important to have lawyers who have dealt with these issues before. In our extensive experience, once everyone knows and understands the law, they are better prepared to deal with reality.
Wrongful death damages are not generally capped or limited. However, certain types of claims have caps on recovery. For example, in most medical malpractice death claims, the limit on non-economic damages is $250,000 for all heirs combined. In most claims against the State of Texas, the cap is $250,000 for all damages claimed by all heirs.
In addition to wrongful death claims, certain claims survive the death of the deceased person and may be asserted by the estate. These include claims for medical expenses incurred, conscious pain and suffering experienced prior to the death of the decedent, and funeral expenses.
Wrongful death claims may be brought in state district court, or if the claims of an estate are being asserted, the case may be brought in a county probate court.
How Are Wrongful Death Lawsuits Paid Out?
Survivors who believe they may have a claim often wonder how wrongful death lawsuits are paid out. Wrongful death claims are subject to the same statute of limitations or deadlines as personal injury claims, and in Texas that is two years from the date of the event (accident), and not two years from the date of death. Additionally, if the claim is against a governmental entity, there are specific notice provisions that must be complied with, or the right to sue will be denied. For example, in a claim against the City of Houston, verified (sworn) written notice must be given to the City Secretary within 90 days of the incident. In a claim against the State of Texas or any of its political subdivisions (counties, school districts, etc.), written notice must be given within six months of the incident. ***Always speak directly to an attorney about the exact statute of limitations and any other deadlines that may apply to your specific claim(s).***
The death of a loved one is extremely traumatic, and most families struggle to cope with the loss and to make funeral arrangements. They seldom have the ability to focus on how or why their loved one died, or to think about lawyers or lawsuits. However, it is important to know that in most cases involving negligence, the party at fault has an insurance company that begins investigating the accident as soon as they learn about it. That means they are working against your family while you are grieving. Therefore, it is important for you to know that when anyone has died as a result of negligence, their family needs to call a lawyer as soon as possible to investigate the case. This is particularly true if there are minor children, as they cannot speak or act for themselves.
To talk with a lawyer at Terry Bryant Accident & Injury Law about a wrongful death claim, call (713) 973-8888 or toll-free 1 (800) 444-5000. We are available to help 24/7.