A Survivor’s Legal Guide For Family Members of Texas Wrongful Death Victims

What You Need to Know About Death Benefits, Claims, and Inheritance Laws

I want to tell you that I am sincerely sorry for your loss. I personally know how exceedingly painful it is to lose a loved one. You are probably in shock and have no idea where to start or what to do. Grief is a long, painful process – and those who’ve lost loved ones often feel numb and exhausted. This will last long after the funeral is over. Therefore, you may need some help in order to survive emotionally or financially during these difficult times.

In my law practice – The Stephens Law Firm – I have helped hundreds of families deal with the death of a loved one. I want to share what I have learned so that folks like you can deal with their loss, especially at a time when you are overwhelmed.That is why I wrote this book. I hope it will make things a little easier for you.


This guide outlines details, actions and documents that you should gather following the death of your loved one.The first part of the book discusses the various documents you should collect. In the next part, I explain what benefits and insurance may be owed to you or your family.The next section discusses the laws that give you the right to be compensated for your financial and catastrophic emotional harm if your loved one’s death was caused by negligence. Finally, I tell you about the inheritance laws and give helpful hints in dealing with estate matters.

You must understand that this guide is not legal advice. It is intended to provide general guidance during your loss.You should contact a lawyer to discuss your particular circumstances.

What Documents Do I Need To Collect?

You will need to gather a number of papers and documents to find out what benefits may be available as well as to finalize the estate.

1.      The Death Certificate.

Your funeral director will offer you an opportunity to purchase a death certificate. I recommend that you get at least 10 certified copies. It is worth paying the extra money for the certified copies, as many offices and agencies that you may deal with will require a certified death certificate.

2.      Insurance Policies.

You need to get copies of all insurance policies. These include life, health, home, automobile, accident and any

other insurance policy owned. If you cannot find the insurance policies, you should contact your insurance agent and arrange to obtain copies. All insurance policies may provide some type of benefit, whether it be payment of accidental death proceeds, or medical, funeral and burial expenses.

3.      The Will.

You need to obtain a copy of the will. If you cannot find it, the lawyer who drafted the will may have it or you may be able to find it in a safe or a safe deposit box. The will needs to be provided to the person who was appointed as the executor of the estate.The executor should then file it in the appropriate court.

  • Children’s Birth Certificates and  Marriage Certificate. It is necessary to obtain these documents in the event that benefits can be claimed based upon the marital

relationship, or if the decedent or you have dependent

children. Copies of the marriage certificate can be obtained from the county clerk if you cannot find the original. Copies of your children’s birth certificates can be obtained from the state or county public health offices where the child was born.

5.      Social Security Numbers.

You need to obtain the Social Security numbers of the decedent and any dependent children.The decedent’s Social Security number can be found on the death certificate.

6.      Military Discharge Papers.

You should obtain a copy of any military discharge papers if the decedent was a veteran. Benefits may be available. If you cannot find the discharge papers, write to:

The Department of Defense National Personnel Records Center 9700 Page Avenue

Saint Louis, Missouri 63132-5100 Phone No. (314) 801-0800

7.      List of Assets.

You should list all of the decedent’s assets, including real estate, stocks, bonds, checking accounts, savings accounts and personal property. You should gather all real estate titles and other financial papers such as retirement plans, employee benefit plans, IRAs and ERISA plans from the decedent’s employer.

Changing Ownership or Title

You may need to change the title or ownership of property.You should consider changing the title of ownership of the following:

1.      Automobiles.

You should change the title of your car. Contact the Texas Department of Motor Vehicles. The car should be titled in your name so that you can obtain insurance for it and transfer the title if you need to do so later.

2.      Insurance Policies.

Check with your insurance agent about changes that should be made to your insurance policies. You may no longer need the same coverage and you may want to change beneficiaries.

Further, your loved one may have had employer-provided medical insurance coverage. The federal COBRA law allows you and any dependent children to continue under the  decedent’s  work-related  medical  insurance  plan  for up to 36 months if you continue to pay the premiums. On the other hand, you may decide to purchase your own medical insurance. You simply need to compare the price of the existing plan with one that you can purchase outside the employer’s plan to decide which is better for you, considering, of course, the benefits and the cost.

3.      Credit Cards.

Credit cards that were in the name of the decedent should be cancelled. The obligations to make the payments on these cards are owed by the estate. On the other hand, if the credit cards are in both your name and the decedent’s name, you need to continue making the payments on the cards or you will ruin your credit rating.You should notify the credit card companies by phone as well as in writing to inform them that your spouse is deceased and the card should list your name only. Many times, widows experience difficulties in obtaining credit if they do not have their own credit rating.Therefore, once you put the card in your name, you can establish your own credit rating.To improve your ability to get credit, you should inform the lender about the credit cards you shared with your spouse, even if your name was not listed.

4.      Safe Deposit Box.

Usually, the spouse who rented the box puts it in their name. It will require a court order to open the box to obtain anything other than the will or other materials pertaining to the death before the will has been probated.

5.      Other General Finances.

Continue to pay debts that are in both your name and your spouse’s. This is particularly true for your home payment, phone bills and utilities in order to keep a good credit rating. Debts  that  were  in  your  spouse’s  name  will  be the responsibility of the estate and should be forwarded to either the executor, a personal representative who is settling the estate or a lawyer.

What Potential Benefits are Available?

1.      Insurance.

You should gather all of the insurance policies, as each of them may be a source of benefits. These include the following:

  • Automobile insurance
    • Life insurance
    • Accident insurance
    • Mortgage or loan insurance
    • Credit card insurance
    • Insurance plans provided by the

decedent’s employer

Insurance policies usually designate the beneficiary to whom the proceeds are to be paid. They can be an important source of income and can be processed quickly. They should be filed as soon as possible.

2.      Social Security.

If your spouse is the decedent, you should find out if your spouse was covered by Social Security. As a general rule, if your spouse worked for 10 years (40 quarters), they were covered. Call your local Social Security office or 1-800-772-1213 to find out if your spouse was eligible to be paid monthly benefits. You can also find the location of your local Social Security office by searching “Social Security Administration Office locator” on Google.

If the decedent was already receiving Social Security benefits, do not deposit any checks received after the death until you check with Social Security.

You may have two additional types of benefits under Social Security: (1) a death benefit and (2) survivor’s benefits.

Burial expenses. Social Security pays a one-time death benefit toward burial expenses. You should complete the necessary forms at the Social Security office or ask the funeral director to complete them and apply the payment directly to the funeral bill. This payment is made only to

eligible spouses or a child entitled to survivor’s benefits. Survivor’s benefits for a spouse. If you are age 60 or older, it is possible that you are eligible for survivor’s benefits.The amount of any benefits for which you will be eligible before age 65 will be less than any benefits due to the spouse after turning 65. If you are under age 60, you may also be eligible for benefits if you are disabled or care for dependent children.

Children who are disabled or under the age of 18

may also be entitled to benefits.

When applying for Social Security benefits, it is important that you provide all birth and death certificates, marriage certificates, Social Security numbers and copies of the decedent’s most recent federal income tax return. If your children are going to school, they may be able to collect benefits up to age 19.

3.      Veteran’s Benefits.

If the spouse was a veteran who received an honorable discharge, you may be eligible to receive $300.00 for burial and funeral expenses, as well as $300.00 as an allowance toward a burial plot in a private cemetery. If the death happened in a VA hospital or VA nursing home, then the costs of transporting the decedent’s remains can be reimbursed. Burial in a national cemetery is free to a

veteran, their spouse and dependent children.They are also eligible for a headstone or grave marker at no charge. The funeral director can help you apply for these benefits.

Also check with your regionalVA office because if the spouse was receiving disability benefits, you and any dependent children may also be entitled to monthly payments.

4.      Employee Benefits.

If the decedent was employed at the time of death, ask their  employer  about  any  potential  survivor’s  benefits. Life, health and accident insurance provided through the employer may provide benefits. Further, if your spouse or loved one belonged to a union or professional organization, find out if the organization offers death benefits. Finally, your loved one may also be due a paycheck for vacation or sick leave.

All past employers should be contacted to see if there are any payments owed as a result of a pension plan.

If the decedent was already retired and receiving a pension, check with the employer to determine if you will continue to receive a pension payment and in what amount.

5.      Probate.

You may be entitled to inherit money or property under a will or the inheritance laws. This is explained in greater detail later in this book.

6.      Worker’s Compensation Insurance.

If your spouse was killed on the job, the law requires that the employer’s worker’s compensation insurance company pay death benefits to you and dependent children. Ask the employer and consult with a worker’s compensation insurance attorney to help with these benefits. In some instances, the family of a person killed on the job may have the right to bring suit against the employer. The law says that an employer is responsible for paying additional damages when an employee’s death is caused by the gross negligence of their employer.

7.      Claims When Your Loved One Was Killed Due to Negligent or Wrongful Conduct.

See the following discussion.

Overview of Wrongful Death and Survival Act Claims

Texas law allows two different actions when somebody is wrongfully killed: (1) a wrongful death action and (2) a survival action. There are significant differences between the two actions with regard to who can recover damages and what damages are available.

What is a Wrongful Death Claim?

The Texas legislature enacted the Wrongful Death Act, which allows one to make a claim and to sue, if necessary, when improper action by a company or person, or a defective product results in someone’s death. Usually, the person bringing the claim, the “plaintiff,” must prove that the defendant’s negligence caused the decedent’s death. A corporation is liable if an on-the-job employee negligently caused the death (other than an employee of the same company covered by worker’s compensation).

There are many types of wrongful death claims. A Wrongful Death Action simply describes the type of damage claim that is involved and who has the right to bring the action. As long as a person’s or company’s carelessness has contributed to causing someone’s death, there is a possible wrongful death claim arising

out of the incident.The law says that if none of the wrongful death beneficiaries have begun a wrongful death action within three (3) months after the death, then the personal representative of the estate has the obligation to bring and prosecute the action, unless ALL wrongful death beneficiaries request the representative not do so. See Texas Civil Practice and Remedies Code Section 71.004 (c).

For instance, if someone negligently kills someone else in a car, truck or pedestrian accident, the claim is a Wrongful Death Action. Sometimes, a company is liable when its defective or unreasonably dangerous product kills a loved one. Other times, property owners and managers are liable when a dangerous activity or condition on their property kills someone, i.e., plant explosions, unsafe worksites or the release of toxic chemicals. When an employer wrongfully causes someone to die, it is necessary to prove that the employer is guilty of gross negligence in causing the death. Unfortunately, even health care providers wrongfully kill between 100,000- 200,000 folks per year through medical malpractice. In those cases, it is necessary to prove that the health care provider violated the standard of care to the point of a loved one’s death.

Wrongful death claims also arise out of murders. I have prosecuted claims against murderers who killed for insurance proceeds. In one case, the killer was acquitted in a criminal trial and was demanding that the life insurance company turn over the decedent’s life insurance benefits to him because he was the named beneficiary. The jury in the civil case stopped this injustice

by finding in civil court that the killer had intentionally taken the decedent’s life. Thus, the acquittal of a murderer in a criminal trial does not mean that the killer can necessarily escape justice by going free, nor collect the insurance benefits.

Insurance companies do not and should not pay compensation to protect murderers from liability, but sometimes the killer does have assets. For example, I tried the Clara Harris case and proved that she murdered her husband in a jealous rage. After the judgment, using legal collection methods, I found money that she had stashed away so that the wrongful death beneficiaries could not be compensated.This money was paid to the beneficiaries.

Should I Bring a Claim?

I have had the privilege of representing many families who have suffered through the wrongful death of a loved one. I have tried over 100 jury trials to Texas juries, many of them involving wrongful deaths. I have counseled hundreds of people who have suffered catastrophic losses and who had a hard time coping with losses like yours. I always hear my clients say something like this:

“No amount of money will ever replace my child, or my husband or my wife, so what good will it do for me to ask for money? What good will the money do? It will never make the pain go away.”

I always tell them:

“You are 100 percent correct. You don’t want a dime. What you want is for your loved one to walk through that door and you will gladly skip out of the room with a joyful heart, hugging and laughing as you go.”

The law is so fragile; it has no power to return your loved one. Only the good LORD in heaven has the power to unite you with your loved one. But I ask, what are we to do if your loved one was wrongfully and negligently killed due to the irresponsibility of another? Is it proper and righteous for us to seek justice? If it is, then the only justice the law allows in a civil case is for the payment of a “fair and reasonable amount of money” that should equal “fair and reasonable justice” in the case.That is all the law can do. The law allows you to recover compensation for the financial losses that you have sustained, as well as a reasonable amount of money to compensate you for the overwhelming grief, torment and suffering that you are experiencing now and will experience for the balance of your life. The money replaces your lost income and benefits. If you wish, you and your family can use the money in very meaningful ways. Some folks put the money in charities and foundations, and others use it in a manner of which their loved one would approve. It may provide you the means to bring some small measure of joy in your life to replace the hole in your heart.

Some folks still feel guilty about asking for money for their loss. Another way to look at it is to acknowledge the rule which says that those in our society who negligently cause harm should

be held accountable for the damage they have caused. This is true whether it be harm to property, health or life.That is the principle behind the concept of justice – holding the wrongdoer accountable for the wrongdoing instead of making the innocent person “grin and bear it.”

Suppose that someone negligently broke out the windshield of your car.Would it be fair to make them pay $750, if that was a fair price to replace the windshield? Or, suppose that the wrongdoer negligently ran into a building that contained expensive art and caused $3 million worth of damage. Would it be fair for them to say that they didn’t know that the building contained such valuable merchandise and, therefore, the business should just eat their losses? What would really be unfair is to permit the negligent wrongdoer to both cause the harm and keep the money that represents the value of the destroyed paintings.That would really be an injustice.

Can you imagine anything more valuable than a human life? And if the law mandates that our juries place a reasonable value on the losses that were caused, isn’t it alright for you to ask that the law be enforced?

How Much Should I Ask for my Claim?

Every family’s claim is different and the value is determined by a jury. How should you or your lawyer go about estimating that value in order to settle the case?

Suppose in the situation where the wrongdoer negligently caused property losses of $3 million in destroyed art that they felt it was fair to offer only $1 million for the damage. “Well, $1 million is a lot of money.That is all I’m going to pay,” they said.“Any more would be a windfall for the owners of the art.”

Would that be fair? No, because the wrongdoer should be required to pay for all the damage, not just part of it. Full value for the harm caused is what represents justice. Anything less than that

represents an injustice to the person who has had their precious paintings damaged.

Shouldn’t the same thing be true when we are talking about the loss of the most precious of all things – human life? Not just any life, but a life that meant more to you than anything else in the world. Therefore, can we agree that the person or company that causes someone to lose their life owes full value for that life? That is justice, and anything less than that is injustice. The wrongdoer must be held accountable to you and your family for all the harm and losses you have sustained, regardless of whether these losses are financial or real human suffering. Those are the rules that apply to all of us and there is nothing wrong in making the wrongdoer pay for ALL the harm they caused.

Therefore, you should not feel guilty about asking for the only justice that the law allows – money – because it is both legal and righteous. In this book, I will show you all the potential damages and losses that you may claim against the person or company that wrongfully caused your loved one to die.

You should hire a lawyer if you have a wrongful death or survival act claim. The lawyers who specialize in these claims are board certified in Personal Injury Trial Law, a different specialty than those involved in estate and probate matters.These lawyers are experienced in dealing with insurance carriers that pay these claims and trying these cases to juries.

Who has the Right to Bring a Wrongful Death Claim?

Texas law limits the class of individuals who have the right to bring a claim. It says that only a spouse, child or parent of the decedent may recover money. An adopted child has the same rights as a biological child. Further, a parent who has legally adopted a child can bring a suit for the wrongful death of the adopted child.

A common law spouse also has a right to make a claim. Generally, common law is proved when a couple lives together as husband and wife, and represents by words and actions that they are married. Contrary to popular belief, no set length of cohabitation is required, so it is possible for a common law marriage to take place once the couple informally agrees to be married as between them, lives together and tells everyone they are married. No exact words or actions are necessary, and each case is decided under

its own circumstances. A common law marriage is just as valid as a ceremonial marriage that takes place in front of a judge or a preacher. Sometimes, common law marriages are established by filing a declaration of informal marriage, but that is not necessary to establish the validity of the marriage. A common law marriage can be established in a wrongful death lawsuit after the loved one’s death.

A spouse who was separated or abandoned at the time of the decedent’s death can also bring a wrongful death suit. Further, a spouse who remarries after the decedent’s death can bring a wrongful death suit, though the fact of remarriage is admissible in the trial of the case. In Texas, same-sex marriages are unlawful; thus, spouses from such marriages do not have standing to sue for wrongful death.

The parents of unborn children have a right to sue under the Wrongful Death Act, unless the unborn child was killed as a result of medical negligence.

Who Cannot Bring Suit for Wrongful Death?

The Texas statute does not allow siblings, grandparents, foster parents, step-parents, or anyone else other than a parent, child or spouse to bring a wrongful death action. This is true regardless of how close the relationship was or any special circumstances.

A child who was raised by the decedent, but never formally adopted, cannot bring an action for the wrongful death of the decedent. Moreover, an adopted child cannot bring suit for the loss of a biological parent, only an adoptive parent.

The Texas legislature exempts health care providers, including hospitals, doctors and pharmacies, from liability in causing an unborn child’s death. As it stands, doctors and hospitals are given

a free pass to negligently and recklessly injure fetuses that are moments from birth without having to worry about being sued.

However, this class of beneficiaries may have rights under the Texas Survival Act, which is discussed later.

What are the Damages Available in a Wrongful Death Suit?

There are four basic types of damages recoverable in a wrongful death action:

  • Financial losses.
  • Mental anguish.
  • Loss of companionship and society.
  • Loss of inheritance.

Financial Losses

Financial losses are defined as the loss of the decedent’s earning capacity, advice, counsel, services, care, maintenance, support and reasonable contributions of a financial value. Losses may include expenses incurred by the wrongful death beneficiary for psychological care and counseling.

Typically, an economist is hired to evaluate not only the loss of income, but the loss of services, support, advice and counsel. The economist is trained to place a monetary value on the services that the decedent was providing before the death. For example, a decedent’s fatherly advice and counsel to his children may now need to be provided through the time and efforts of others. A professional who would provide similar advice, counsel and services of this nature would charge by the hour or by the visit.

In other instances, an adult child may have promised his parents that he would provide for the parents when they could no longer care for themselves. An economist is trained to put a value on how much the parents must now pay for these services in order to keep them out of a nursing home.

Lastly, an economist is trained to evaluate the total loss of income and benefits that the survivors would have likely received over a lifetime had the decedent survived. The financial losses sustained by wrongful death beneficiaries can be very substantial.

The Real Human Losses are Compensable, too

If you really think about it, the worst harm that you and your family will suffer are the catastrophic loss of human life, emotional torment and lost companionship. The law recognizes that these losses are very real and that you should be paid back. The value of these losses can be worth a lot to those who were the closest to and depended on your loved one. A jury assesses these losses. Some juries find the damages are worth very little, while in other circumstances juries find these damages are worth several hundred thousand dollars or even more. There are no limits on these damages (outside of medical malpractice cases), other than what is reasonable. However, trial judges and appellate courts have the right to reduce an award if they believe it is excessive.

Mental Anguish Damages

You and your family can recover for your mental anguish in a wrongful death action. Mental anguish is the emotional pain, torment and suffering that you experience from the death of a loved one. A jury is given discretion to award a fair amount of money that represents these losses. Every person’s suffering is different and every case is different. That is why juries are given a lot of leeway when deciding on the amount of money to be awarded.

Loss of Companionship and Society

The plaintiff can recover damages for loss of companionship and society, which are defined as the positive benefits flowing from the love, comfort, companionship and social interaction you would have shared if your loved one had lived. A jury considers the following in deciding how much to award:

  • The relationship between you (or your family) and the decedent.
  • Living arrangements between you (or your family) and the decedent.
  • Extended separations between you (or your family) and the decedent.
  • The harmony of your family relations.
  • Your (or your family’s) common interests and activities.

Likewise, juries are given wide discretion when deciding an appropriate value for this element of damage.

Loss of Inheritance

You or your family can recover damages for the loss of inheritance in a wrongful death action. Damages for loss of inheritance compensate you or your family for what your loved one would have accumulated during the course of their lifetime. A loss of inheritance is defined as the value that your loved one, in reasonable probability, would have added to the estate and left at the time of a natural death to the statutory wrongful death beneficiaries had it not been for the wrongful act causing premature death.

Exemplary or Punishment Damages

In a wrongful death action, the plaintiff can recover exemplary damages under the Texas Constitution. Under the Texas Constitution, exemplary damages are recoverable for wrongful death  when  the  death  is  caused  by  the  defendant’s  willful  act, omission or gross negligence. Only a surviving spouse and heirs of the decedent (children) can recover exemplary damages, which can be awarded in addition to the other damages already discussed. Parents cannot recover exemplary damages, but can recover all the actual damages already mentioned.

Division of Damages

Questions always arise as to how damages are apportioned. If a jury is asked to consider the case, it will separately assess the amount of damages that each beneficiary is entitled to recover. If the case is settled, your lawyer will help decide the apportionment of damages in accordance with the amount of losses that each person has sustained. Wrongful death beneficiary damages are not determined by the will, if there is one, or by the laws that govern inheritance, if the decedent died without a will. Therefore, a lawyer experienced in estate and probate matters usually does not have the necessary experience to help determine the amount of damages each beneficiary is entitled to recover. Trial lawyers who are experienced in Personal Injury Trial Law are trained to help clients with these matters because they know how juries are most likely to apportion the damages.

Damages are not Subject to Your Loved One’s Debts

Damages awarded in a wrongful death suit are not subject to the decedent’s debts. A creditor cannot claim any of the money because it belongs to the wrongful death beneficiary, and not to the estate or to the decedent. As a result, debts such as Medicare liens and hospital liens cannot reduce a wrongful death recovery.

Common Defenses

In wrongful death actions, the defendant can assert the defense that  the  decedent’s  negligence  caused  the  decedent’s  injury. If the defendant is able to prove that the decedent was more than

50 percent at fault, the wrongful death beneficiaries will not recover any money. If the decedent’s fault was 50 percent or less, the wrongful death beneficiaries have a right to recover money. However, that recovery is reduced by the percentage of the decedent’s fault that contributed to their death.

Worker’s Compensation Claims

If the decedent was killed while in the course and scope of his employment and the employer has worker’s compensation insurance, the plaintiff ’s recovery of actual damages is barred. However, the Texas Constitution allows the wrongful death beneficiaries to still seek recovery if the employer’s gross negligence caused the death. That is, if the employer’s actions constitute conscious indifference to the rights of others and involved an extreme degree of risk, then the beneficiaries may have a right to pursue a claim against the employer for punitive damages, even if the employer has worker’s compensation insurance.

What is a Survival Action Claim?

TheTexas legislature enacted another action known as a Survival Act Claim. This claim allows the jury to make the wrongdoer pay for the harm and losses sustained by the decedent prior to his death. This includes money for your loved one’s pre-death injuries, pain, suffering, agony and medical expenses. The action also requires the wrongdoer to pay for reasonable funeral and burial expenses. This action should be considered when dealing with any negligent conduct that causes a death.

Who Can Bring a Survival Action?

The plaintiff brings a survival action as the legal representative of the estate, i.e., executor of a will. If there is no legal representative, such as when no estate is open, then a spouse, child, close relative or other heir can bring a survival action.

Who Can be a Personal Representative of The Estate?

A personal representative is an executor, independent executor, administrator, independent administrator or temporary administrator.

The personal representative has the legal obligation to collect the assets and recover money on behalf of the decedent’s estate. This includes the obligation to investigate and prosecute meritorious claims that the decedent would have been able to make if they had survived.

Executors are involved when the decedent leaves a will. They are usually named in the will.

When there is no will, an heir is entitled to the decedent’s estate under the inheritance laws. (Discussed in detail later in this

book.) Many times, it is proper to bring a survival action without opening a separate estate action. A lawyer will review information that you have bearing on the following items to make this decision.

  • Little or no debts owed by the decedent. There is no need for an estate administration when the estate does not have two or more debts that are owed.
  • Family Settlement Agreement. The family can agree in writing how they want to split up the estate assets and pay the decedent’s debts out of the assets.
  • Only one heir. There is no need for an estate administration when the decedent died without a will and the plaintiff is the only surviving heir entitled to inherit from the estate.
  • No money owed to the estate.There is no need for an estate administration when there are no funds or other property payable to the estate.
  • Alternatively, a Survival Action can be brought by an heir when the appointed personal representative refuses to fulfill their legal obligation to sue on behalf of the estate.

Does the Personal Representative or Heir Have a Right to Recover Survival Act Damages?

Personal representatives may have a right to recover damages if they are also entitled to recover an inheritance under the will or the inheritance laws if there is no will. Otherwise, they do not have any rights to survival action damages. The beneficiaries named in the will, or heirs, if there is no will, are the only ones who can recover these damages.

Hypothetically, suppose that the personal representative is a friend who the decedent appointed in the will, but who was not named as a beneficiary in the will.The friend would have no rights to recover survival action damages.

In a situation where there is no will, the estate passes to the heirs. The administrator would have a right to recover money

if the administrator is also an heir to the personal property of the decedent. For example, suppose that the administratrix is the spouse of the decedent and had children with the decedent. Because the administratrix is an heir, she would be entitled to recover money, as well as the children. See charts on pages 19-21 that set out the distribution.

What Damages Can be Recovered in a Survival Action?

The damages in a survival action are those that the decedent could have recovered had they survived. These include the decedent’s  medical  expenses  as  well  as  compensation  for  pain and mental anguish experienced prior to death, including mental anguish the decedent suffered knowing they were going to die. Funeral and burial expenses are also recoverable.

What Must be Proved to Recover?

It must be proved that the defendant’s negligence or wrongful act caused or contributed to the decedent’s death. As in wrongful death cases, survival act cases also reduce the award if the decedent’s negligence contributed to their death. If the decedent’s negligence was 51 percent or greater, then the survival action is barred.

Distribution of Damages

The damages awarded in a survival action belong to the estate and are distributed to those who would have received them if the decedent had obtained them before death.The proceeds of the suit are distributed to the decedent’s heirs according to the decedent’s will. If there is no will, the inheritance laws govern how the money is distributed. See the charts on pages 19-21 which show the distribution of personal property among surviving heirs.

Damages Subject to Debts

Damages awarded in a survival action are subject to the decedent’s debts (unlike damages awarded in a wrongful death action, which are not). For example, if a person was negligently injured and incurred several hundred thousand dollars in medical expenses prior to dying, this debt is an obligation that must be satisfied out of the survival action proceeds. As an example, suppose Medicare paid medical expenses and asked that these expenses be paid out of any settlement of the survival action.The law would allow Medicare to recover its lien against the survival action proceeds.

An experienced personal injury lawyer who deals with these claims may be able to reduce or eliminate creditors’ claims to a settlement in a lawful manner. I have been successful many times in eliminating liens that were asserted against a beneficiary’s recovery.

What if Some of the Wrongful Death Beneficiaries do not Want to Bring Suit?

Suppose that the widow of a decedent wants to bring a wrongful death claim, but the children do not. The law would allow her to bring the claim. The children could disclaim any interest that they had in the wrongful death proceeds and the claim could more forward. If the children refuse to cooperate, they could be made involuntary plaintiffs and the claim could proceed.

Time Limit to File Suit

As a general rule, the law allows two years for persons to file a suit against the person or company responsible for causing the a wrongful death, though the statute of limitations can vary depending on the person bringing the claim and the circumstances. It is important to start the investigation of the claim as soon as possible, however, because the wrongdoer’s insurance company will send a team of investigators and adjusters who will be working to defeat the claim. There is no limit to what they will do to influence witnesses and manipulate the evidence in their favor. Therefore, as soon as you are able you should consider hiring a lawyer to investigate your claim and advise you if it is meritorious.

Which Lawyer Should I Hire?

You should first hire a lawyer who is board certified in Texas Personal Injury Trial Law by the Texas Board of Legal Specialization. They will be able to provide advice regarding wrongful death and survival claims.They can also determine if you need to hire a lawyer who specializes in probate matters to handle any complicated estate issues that fall outside personal injury law.

Lawyers who specialize in wrongful death and survivor claims charge contingency fees.That means they will not charge you unless there is a recovery and then, they will usually charge around 40% of the recovery. Further, these lawyers will advance all expenses, including those for experts, depositions and investigators, during the pendency of the claim. If any lawyer wants to charge you by the hour, you are not talking to the right specialist.The vast majority of

people cannot afford to pay by the hour. Only big businesses and insurance companies pay lawyers by the hour.

When you have a lawyer on a contingency fee basis, you owe nothing if there is no recovery. Therefore, the lawyer assumes the risk of losing.

If you want additional information on how to choose a lawyer in Texas, you may request my FREE book, Hiring The Right Injury Lawyer. The book outlines everything you need to know before hiring a lawyer.

General Principles of Probate Law

Probate  is  the  legal  process  of  paying  the  decedent’s  debts and distributing the estate to the heirs. If there is a will, the real property and personal property will be distributed according to the directions in the will. There are some exceptions to this rule, such as bank accounts that have a right of survivorship and trust property that can pass outside the will.

What Do I Do if There is a Will?

A will usually names a personal representative known as an executor. The will should be given to the personal representative, who must file a petition with the court after the death. The will is filed with the court, which will require proof that the will is valid. This court will also require the personal representative to gather the assets, ascertain the debts and distribute the estate in accordance with the will.The Harris County Probate Court Web site has forms you can download to use to Probate a Self Proving Will.

See http://www.cclerk.hctx.net/Probate/Downloadable_Forms.aspx.

What if There is No Will?

If there is no will, the Texas inheritance laws apply (also known as the laws of descent and distribution). The persons who are entitled to inherit under these laws are called heirs.

Texas law provides for the distribution of the estate of the decedent. I have attached charts to guide you through the general rules of Texas inheritance laws. The charts are self-explanatory, but you need to understand some basic concepts.

First, you must understand whether the decedent’s property was titled as separate property or community property. Moreover, you must understand the distinction between personal property and real property. After you understand these concepts, the charts and the accompanying terms will provide general guidance as to what to expect with regard to distribution of property.

Community Property vs Separate Property

There are two major categories of property in the state of Texas, known as separate property and community property.

Separate property is:

  • Property owned prior to marriage.
  • Property acquired at any time by gift or inheritance.
  • Recoveries for personal injury sustained by a spouse during marriage (except for loss of earnings).
  • Property exchanged for the above items i-iii.

Community property consists of the property, other than separate property, acquired by either spouse during their marriage. It doesn’t matter who has possession of the property or

whose name is on the title or deed. It is community property if it was obtained in a manner other than those listed under separate property. There is a presumption that all property possessed by either spouse is community property.

In Texas, the appreciation or increase in the value of separate property is considered community property. That means that income or interest earned on separate property in a bank account is community property.

Real Property vs Personal Property

Real property means land and all things that are attached to it. Anything that is not real property is personal property, including anything that is not nailed down, dug into or built on the land. For example, a building is real property, but the furniture that is in the building is personal property. Money, stocks and the proceeds of a lawsuit are considered personal property.

How Do I Probate an Estate if There is No Will?

There are numerous ways to handle the probate and administration of an estate when there is no will. These include transferring property by an Affidavit of Heirship and the use of the Small Estate Affidavit in estates involving less than $50,000. An Independent Administration is another common practice and involves little court involvement. The purpose of the various proceedings is to gather the decedent’s assets, which should be included in the estate, to pay all debts that are owed and to then distribute the proceeds to the heirs after everything is paid. Here are some helpful tips to deal with some common issues.

First, many bank accounts, employer accounts and almost all insurance policies may be able to be paid without dealing with probate issues. If a bank account or employer account contains the

decedent’s money, check to see if the accounts are designated as “joint tenancy with right of survivorship” accounts. If so, the money is owed to the spouse without further work. Insurance proceeds and retirement accounts usually have designated beneficiaries, and such accounts are not considered probate assets. Fill out the necessary forms and the proceeds are usually paid promptly.

If bank accounts have no designation, then you will need to comply with the bank policies. Many banks will allow you to provide an Affidavit of Heirship in order to obtain the money in the accounts. I have included this form at the end of the book. See Example A at the end of the book.

If the bank will not accept this form and if the estate is worth less than $50,000 excluding the homestead and other exempt assets such as most personal possessions and life insurance, then file a Small Estate Affidavit in the county clerk’s office. If in a large county such as Harris County, then file it with the Clerk of the Probate Court. Ask the court clerk to let you know what the court requires to get an Order and Approval of Judge for Affidavit of Distributees – Small Estates. They will let you know what is required to get the judge’s signature.

Two disinterested witnesses who have no financial interest in the estate assets must swear to the heirship information contained in the affidavit.The Small Estate Affidavit route is very inexpensive

(the filing cost in most counties is less than $75) and, in many cases, can be done without the involvement of an attorney.

Upon approval of the affidavit by the probate court, all persons or entities dealing with distributes of assets from the small estate are released from liability so they should be inclined to release the money. Distributees (those trying to get the money) can bring an action to force delivery of the estate property and the distributees will be liable to any creditors or anyone else having a prior right to the property.You should note that this procedure does not transfer title to real property, except for a homestead.Thus, if the decedent owned real property other than the homestead and had no will, most likely your only alternative is to proceed with a Determination of Heirship proceeding. This is more expensive because the court hires a lawyer to find out if there are any unreported or unknown heirs.This costs you money because you pay the court’s lawyer.

I have attached the form you can use to get this accomplished. See Example B at the end of the book. Make sure it is filed among the county’s records and obtain a certified copy of the order and take it to the bank.The bank should accept this court order and allow you to obtain the money. If it doesn’t, you will need to hire a lawyer to help you force the bank to comply with the law.

Many other matters may require you to hire a lawyer.You or the personal representative of the estate should consult a lawyer for advice.

Taxes Owed by The Estate

You should consult with your CPA about taxes. General principles are as follows: An estate’s representative is responsible for making sure that the estate’s taxes are paid.The decedent’s heirs and/ or beneficiaries will not have to pay income taxes. Life insurance proceeds are exempt from the federal income tax if they are received as a result of the insured’s death. Your loved one’s estate may owe estate tax on the value of the proceeds, however. Without careful estate tax planning done prior to death, life insurance proceeds may need to be included in the taxes owed by the decedent’s estate. Further, the decedent’s estate will owe federal estate taxes if it is larger than $3.5 million after subtracting any amount received by the decedent’s spouse. The federal estate tax rate is currently 45% (for year 2010).


I pray for you to receive guidance not only from this book, but from the Shepherd who has the power to guide you through these troubling times. The LORD. Even if you are not a Christian, the Bible has many comforting words which I hope will help you.

PSALM 71:20‑21

Though you have made me see troubles, many and bitter, you will restore my life again; from the depths of the earth you will again bring me up.You will increase my honor and comfort me once again.


He will swallow up death forever. The sovereign LORD will wipe away the tears from all faces.


Therefore,“They are before the throne of GOD and serve him day and night in his temple; and he who sits on the throne will spread his tent over them. Never again will they hunger; never again will they thirst. The sun will not beat upon them, nor any scorching heat. For the Lamb at the center of the throne will be their Shepherd; he will lead them to springs of living water. And GOD will wipe away every tear from their eyes.”

In conclusion, I hope that this book has been of some help in leading you out of your confusion. Hang in there, do your best and consult with professionals for further guidance, if necessary.