Who Can File a Wrongful Death Claim?

The decision to contact an attorney or file a lawsuit may be low on your list after the loss of a loved one, but acting quickly could be essential. The first steps are: finding out who can file a wrongful death claim, how long they have to decide, and what steps it takes to accomplish the task.

The legal minds at Pierce Skrabanek have compiled answers to these basic, time-sensitive questions. If you need to speak directly with our offices, call today at (832) 690-7000, or fill out our online contact form to schedule a professional consultation.

We at Pierce Skrabanek understand that you may be experiencing a tremendous amount of anger, grief, and exhaustion in processing the death of your loved one. Let us remove the burden of documenting and pursuing a wrongful death case from your shoulders—we’ll handle the legal paperwork so you can focus on rebuilding a life after your loss.

Table of Contents

Who Can File a Wrongful Death Lawsuit?
How Does a Wrongful Death Lawsuit Work?
How Can a Wrongful Death Settlement Help Me?
Contact Wrongful Death Lawyers at Pierce Skrabanek
Testimonials for Pierce Skrabanek
Wrongful Death FAQs

A mother considers her bills and her options as her teenage child puts a comforting arm around her shoulders.

Who Can File a Wrongful Death Lawsuit?

Filing a wrongful death lawsuit is an option for immediate surviving family members across all 50 states, specifically parents, children, or spouses. Some states allow distant family members like cousins, grandparents, and descendants to file if there are no closer relatives available. Other states allow financial dependents and creditors to file for wrongful death damages in certain circumstances as well.

Pierce Skrabanek is a personal injury firm headquartered in Texas, where those who can file a wrongful death lawsuit include:

  • A surviving spouse: A husband or wife in a formal or common-law marriage may file a wrongful death suit. This is true even if the couple was separated at the time of death, or the survivor has since remarried.
  • Children: Biological and fully adopted children have the right to file, including adult children for elder parents.
  • Parents: Biological, adoptive, and divorced parents have the right to file a wrongful death suit in Texas regarding the death of their child, whatever the age.

There is another potential player here: the personal representative of the deceased’s estate, also known as the executor.

Who Is the Estate Executor, and Can They File for Wrongful Death?

An executor is the person who is assigned with the task of managing the deceased person’s belongings, and ensuring they are distributed to the family members properly.

Sometimes a surviving spouse, parent, or adult child is named as executor in the deceased person’s will. However, it’s important to understand that an executor can only be appointed by a probate court. Even if you, as a direct family member, are chosen and agree to be the executor, it isn’t official until you “open the estate” in a probate court and are formally appointed by a judge.

The reason you must agree to an executor position is because it involves a large amount of responsibility. The executor must wrap up the financial holdings and property of a deceased person, which may involve liquidating assets, selling homes, and paying debts.

In a lot of ways, being an executor is a complicated job, which is why some will name an attorney, accountant, or financial institution to do the work. This person or entity would be paid for their services by the estate. The job can also be shared by co-executors, a lawyer and accountant for example, or by a person’s spouse and adult child for equal control and shared responsibility.

An executor is obligated to act in the estate’s best interest, which is known as a “fiduciary duty” to the estate. If your family disagrees with the appointed executor, there are two facts you should keep in mind if you’re in the state of Texas, where Pierce Skrabanek is located:

  1. Direct relatives have the right to file a wrongful death suit first (though there is a limited three-month window to do so before that right may open up to others)
  2. The surviving beneficiaries of the deceased can request that a wrongful death claim not be filed by anyone else, including the executor (again, within the first three calendar months after a wrongful death)

These laws vary from state to state. In Texas, a non-familial executor only has the right to file for wrongful death if the family allows it. In other states, when there is a will to follow and an executor is appointed, it is only the executor who can file a wrongful death claim.

If there is tension or disagreement between the heirs and the executor when it comes to a wrongful death claim, securing your own lawyer can help make the resolution as smooth as possible.

How Does a Wrongful Death Lawsuit Work?

What happens in a wrongful death lawsuit is largely the responsibility of your lawyer. An experienced wrongful death attorney like those at Pierce Skrabanek needs to bring four pieces of proof to the table for success. The elements of proof are:

  1. Establish that there was a duty of care, whether from doctor to patient in a medical malpractice case, or from driver to driver in a car accident case.
  2. Show a breach of that duty occured, whether by accident or intention.
  3. Connect causation between the breach of duty and the fatal injury.
  4. Provide evidence that the injury and death caused damages to their client, the surviving family member, and express that damage in financial sums.

A wrongful death settlement or verdict deals in economic numbers. But a skilled wrongful death lawyer can help translate your non-economic damages, like loss of companionship, into terms the court is able to recognize and rule on.

A fair settlement could help secure your family’s financial future, and help change behaviors and safety protocols—what is helpful for your family may also be beneficial to others.

How Can a Wrongful Death Settlement Help Me?

In addition to holding negligent people or companies accountable for their mistakes, a settlement or verdict in your favor could help you:

  • Pay for medical expenses related to the fatal injury your loved one suffered
  • Replace lost earnings like wages, raises, health insurance coverage, and retirement benefits the deceased would have earned (especially important if they were the main breadwinner of your household)
  • Account for pain and suffering, both physical and emotional, including the loss of companionship, guidance, and comfort your loved one would have provided
  • Recover final expenses for estate closure, funeral, and burial costs
  • Recoup punitive damages, aka “punishment” fees charged to the negligent party and then awarded to you and your family

A fair settlement could help secure your family’s financial future. The cost of those damages to the negligent party may help change behaviors and safety protocols. In this way, what is helpful for your family may also be beneficial to others.

A senior man with a cane and wearing a cozy sweater calls a wrongful death attorney.

Contact Wrongful Death Lawyers at Pierce Skrabanek

No verdict can fully recover all that was lost in a wrongful death case. The loss of a person’s life and their unique personality can never be replaced. Nevertheless, there are real tangible benefits to be gained from filing a wrongful death lawsuit, for your peace of mind, your family’s financial safety, and for the sake of others. By bringing attention to what caused a wrongful death, you may help stop a future tragedy from happening to another innocent family.

Pierce Skrabanek is a law firm of fierce advocates who find purpose in compassion. We do everything in our power to remove any legal burdens from your shoulders, so that you can grieve and heal in peace.

Call Pierce Skrabanek today at (832) 690-7000, or fill out our online contact form to schedule your free, confidential consultation. We fight for justice on your behalf, so that you can get on with your life as quickly as possible.

Testimonials for Pierce Skrabanek

Hear from our previous clients about the kind of service we provide at Pierce Skrabanek.

My experience with Paul Skrabanek and his assistance was wonderful. They took care of me very well and I would recommend them to anyone that needs a good lawyer. The case took almost 4 years but it was a good experience for me to meet Paul and his staff. Thank you so much for your service, I really did appreciate it.

– Harriet H.

My attorney, Michael Pierce, did an amazing job with my case. He’s a straight shooter and has a vast knowledge of the law combined with an extensive amount of experience, making him a fantastic attorney. I fully recommend this firm. Thank you Pierce Skrabenek!

– Victoria S.

My experience with Mr. Skrabanek was honestly far better than all expectations that we had. He took care of us like we were family, making sure me and my wife always felt like a priority, and walked us through all of the concerns that we had. If you are looking for a professional who truly cares for his clients you can stop the search. You won’t be disappointed.

– Daryl M.

Wrongful Death FAQs

Many wrongful death lawsuits can be settled before trial, especially when your attorney provides strong evidence of the negligence and damage you’ve endured. However, sometimes individuals, corporations, and insurance companies refuse to offer a fair settlement, and a trial then becomes necessary.

The experienced wrongful death lawyers at Pierce Skrabanek do not back down when met with such unjust stubbornness. Our record of settlements and verdicts show that we can successfully deliver for our clients either way.

The Internal Revenue Service (IRS) generally does not tax wrongful death settlements or damages awards. A few unique exceptions apply in instances where:

  • The settlement money repays debts that were deducted from your taxable income in previous years
  • Punitive aka “punishment” damages are awarded to you from the negligent party
  • You are granted payments for pain and suffering that were not directly caused by the action which led the initial injury and death of your loved one

Most of the money involved in wrongful death cases is considered compensatory, meaning it compensates you for previous losses or costs, like a refund. If there are other types of payments in your settlement or verdict, your attorney from Pierce Skrabanek will help make sure you fully understand them.

Settlements for wrongful death cases are usually paid in one of two ways:

  • Lump-sum payouts, meaning you get the full amount at once.
  • Structured settlements, which mean you are paid regularly until the total amount is met.

The majority of wrongful death cases involve lump-sum payments, which provide greater flexibility in how you decide the money should be used. However, those experiencing a loss of income (after the death of a household’s main breadwinner, for example), may find the regular payments of structured settlements useful for the reliability they offer. Your attorney can help you determine which option is best for your situation.

The timeline for personal injury and wrongful death cases begins right away. Filing deadlines vary from state to state between 1-6 years.

In Texas, you have two years to file a wrongful death lawsuit before the option is gone. However, if the claim isn’t registered after three months, other parties like the deceased’s executor may file as well. More plaintiffs could complicate your claim and change your final payout amount. Contact Pierce Skrabanek as soon as possible at (832) 690-7000 so you don’t miss your window for justice.