One of the key considerations in any wrongful death lawsuit is the determination of who is eligible to file such a lawsuit. The Texas statute governing wrongful death cases provides guidance in answering this question.
Wrongful death actions are generally understood to be for the benefit of immediate family members of the decedent, and the provisions of the Texas statute are in keeping with this understanding.
The law restricts wrongful death plaintiffs to the parents, spouse, and children of the deceased person. Each of these persons may bring an action for wrongful death either individually or collectively.
Another aspect of the law with regard to wrongful death plaintiffs concerns whether the estate of the deceased person has an executor or administrator. If an executor or administrator exists then that individual is also entitled to file a wrongful death lawsuit under certain circumstances:
• First, the law gives the surviving relatives the first right to file a lawsuit. This first-place priority lasts for three calendar months after the date on which the deceased person died.
• If those three months pass and the relatives have chosen not to file a lawsuit, then the statute directs that the executor or administrator “shall” bring a wrongful death action — the language is not discretionary — unless “all” of the surviving relatives request the executor or administrator not to proceed with the filing of a lawsuit.
The meaning of the statutory provision as it relates to executors and administrators seems to leave room for questions, such as how the executor or administrator determines if a cause of action for wrongful death exists and how to deal with surviving relatives expressing split opinions about whether to initiate such a lawsuit.
Even if the surviving relatives do not desire to pursue a wrongful death action, it may still be advisable for them to consult with an attorney as to what actions an executor or administrator may or should take in their stead.
This post provides only an overview of the topic of who may be entitled to file a wrongful death lawsuit. It does not cover all possible situations in which wrongful death questions may arise, and should not be taken as specific legal advice. If you have questions about a possible wrongful death lawsuit, you would be best served to consult with an attorney.
