Top Austin Wrongful Death Lawyer: What Texas Law Gives Your Family
There is no version of this page that makes the last few weeks easier. What we can do is tell you plainly what Texas law gives your family, what it does not, and which deadlines are already running while you are still making funeral arrangements.
Our Austin wrongful death lawyers work from a law firm at 1204 San Antonio Street, two blocks from the Travis County courthouse, and represent families across Travis, Williamson, and Hays counties. We handle these cases on contingency: no fee unless we recover, and our attorneys advance the costs of investigation and experts rather than asking a grieving family to fund them. The free consultation carries no obligation: (512) 561-5003.
What Our Clients Say
Key Takeaways
- Texas limits who can file to three groups. Under Section 71.004, a wrongful death claim exists for the exclusive benefit of the surviving spouse, children, and parents. Siblings cannot bring it. A stepchild who was never legally adopted cannot either.
- The two-year deadline is not the one that catches people. A claim against the City of Austin must be noticed within 45 days. Other governmental units get six months. And after three calendar months, the estate's executor is obligated to bring the action.
- In a drunk driving death, the cap on exemplary damages can come off. Texas normally limits exemplary damages by statute, but that cap does not apply to conduct constituting intoxication manslaughter. It is the single provision that most changes what these cases are worth.
What Texas Law Calls a Wrongful Death
Chapter 71 of the Texas Civil Practice and Remedies Code creates the claim. Section 71.002 makes a person liable when a death is caused by their wrongful act, neglect, carelessness, unskillfulness, or default.
One sentence decides more Austin cases than any other. Section 71.003(a) applies the chapter only if the person who died would have been entitled to bring a claim had they lived. The family's claim is built on the claim your loved one owned, so any defense that would have beaten them beats you: a signed release, an expired limitations period, or the workers' compensation bar below.
One thing does not stand in your way. Section 71.006 says a wrongful death action is not precluded because the death was caused by a felony or because a criminal case is pending, and the Texas Constitution says the same. The civil case moves while charges are pending, and an acquittal does not end it, because the civil burden of proof is lower. Families wait years for a criminal case and lose the civil claim doing it.
Who Can File a Wrongful Death Claim in Texas?
Texas draws this line narrowly, and it is the first thing we check. Under Section 71.004(a), a wrongful death action exists for the exclusive benefit of the surviving spouse, children, and parents. That list is closed.
Siblings cannot file. Neither can grandparents, grandchildren, fiances, or unmarried partners. We have had to tell a brother that Texas gives him nothing under this chapter, and it is the worst conversation in this practice.
Adopted children and adoptive parents do count, because the Texas Family Code makes an adoption order create the parent-child relationship for all purposes. A stepchild never legally adopted is not a "child" under the statute, no matter who raised whom. Blended families are blindsided by this constantly.
There is also a clock most families never hear about. Under Section 71.004(c), if none of those family members has begun the action within three calendar months after the death, the estate's executor shall bring it unless all beneficiaries ask them not to.
Wrongful Death Compensation: What a Texas Claim Recovers
Wrongful death compensation in Texas goes to the survivors for what they lost. It is not a payment to the estate, and that distinction has consequences worth knowing early.
Under Section 71.010, the jury divides the award in shares among the beneficiaries who are living at that time. And under Section 71.011, wrongful death damages are not subject to the debts of the person who died. Medical bills, credit cards, and other creditors of the estate cannot reach that money. As you will see below, the same protection does not apply to a survival claim, which is one reason how a settlement gets allocated between the two matters.
Economic Damages
Economic damages are the losses you can document. Lost earnings and lost earning capacity over the years your loved one would have worked, lost household services, lost inheritance, and the value of the care, maintenance, and support they provided. Funeral and burial costs. Medical bills incurred before death.
Proving these takes work most families do not expect. For a wage earner it means employment records, tax returns, and often an economist to project a career that will not happen. For a stay-at-home parent it means valuing work nobody ever invoiced, and those cases are frequently worth more than families assume.
Non-Economic Damages
Non-economic damages cover mental anguish, loss of companionship and society, and loss of consortium. In most Texas wrongful death cases these are the larger number, and they are proved through the people who knew your loved one rather than through documents.
One protection worth knowing about, because surviving spouses ask: Section 71.005 bars the defense from putting on evidence of a common-law marriage, an extramarital relationship, or a surviving spouse's marital prospects. Only an actual remarriage is admissible.
Exemplary Damages, What Other States Call Punitive
Texas calls them exemplary damages, and they are not available for ordinary negligence. Section 41.003 requires proof of fraud, malice, or gross negligence by clear and convincing evidence, and the jury must be unanimous on both liability and amount.
The Texas Constitution has said since 1876 that anyone committing a homicide through a willful act, omission, or gross neglect answers in exemplary damages, and Section 71.009 carries that into the statute.
Here is the piece that matters most in an Austin traffic-death case. Exemplary damages are normally capped by Section 41.008, but that cap comes off entirely for conduct constituting certain felonies, and the list expressly includes intoxication manslaughter. In a drunk driving death the statutory ceiling can disappear. That provision changes the value of these cases more than any other.
Common Causes of Wrongful Death in Austin
In 2025, Texas recorded 3,769 traffic deaths, down more than nine percent from the year before and the largest single-year drop in over two decades. Travis County accounted for 136 fatal crashes and 143 deaths.
Most of the cases we take arise from vehicle crashes. Wrongful death claims also come out of premises hazards, defective products, medical care, and workplace incidents, and the last two of those carry procedural rules so different that they are covered separately below.
Fatal Crashes on Austin Roads
Impaired driving, speed, distraction, and fatigued commercial drivers account for most Central Texas fatalities we see. The legal analysis is usually straightforward. The practical problem is almost always insurance.
Texas requires a driver to carry only $30,000 per person and $60,000 per crash. Against a death, that is not meaningful coverage. So the first work in a fatality case is finding every policy that might respond: the at-fault driver's, any employer's commercial policy if they were working, uninsured and underinsured motorist coverage on your loved one's own auto policy, and UM coverage on the policies of resident family members. In a substantial number of the fatal cases we handle, the family's own UM coverage turns out to be the largest available source of recovery.
Medical Malpractice Deaths Follow Different Rules
A death caused by medical negligence is a health care liability claim under Chapter 74, and the rules are unforgiving.
You must send written pre-suit notice with a statutory authorization 60 days before filing, and serve an expert report on each defendant within 120 days after that defendant answers. Miss the report and dismissal is mandatory, with prejudice, and the court awards the defendant's attorney fees against your family. Non-economic damages are capped, with a separate cap for wrongful death claims.
Worst is the deadline. A medical malpractice limitations period runs from the negligent treatment, not the date of death. A family whose relative was hurt by bad care and died a year later may have far less than two years.
Our Austin practice concentrates on vehicle and premises cases. If your loved one died from medical care, call anyway and we will tell you honestly what we see, and where appropriate point you to a firm that handles these full time.
Workplace Deaths and the Workers' Comp Bar
This is the section most websites get wrong, and getting it wrong gives families false hope.
If the employer carried workers' compensation insurance, Labor Code Section 408.001 makes comp benefits the exclusive remedy against that employer, and the statute says so expressly for death claims brought by a legal beneficiary. The family generally cannot sue the employer at all.
The exception is narrow. Where the death was caused by the employer's gross negligence or an intentional act, a claim survives for exemplary damages only, and only for a surviving spouse or children. Parents are not on that list. The parents of an adult child killed by a subscribing employer's gross negligence have no claim against that employer at all, and a page telling them otherwise does real harm.
Two things change the picture. Texas is the only state where a private employer may decline workers' compensation, and against a non-subscriber the family brings a full wrongful death claim with the employer stripped of contributory negligence, assumption of risk, and the fellow-servant defense. And exclusive remedy protects only the employer: claims against a negligent driver, an equipment manufacturer, a property owner, or another contractor survive intact, and that is usually where the recovery is.
Comparative Fault: The Fight Over Your Loved One's Share
Texas uses proportionate responsibility. Under Section 33.001, a claimant recovers nothing if their share of responsibility is greater than 50 percent, and below that the recovery is reduced by the assigned percentage.
In a fatality, that rule creates an ugly dynamic. The one person who could explain what happened is gone. The defense knows it, and pushing your loved one past fifty percent is often its entire strategy: they were speeding, they were not looking, they should have seen it.
Answering that takes physical evidence, and physical evidence is what disappears first. It is the real reason to call someone in the first weeks rather than the two-year deadline.
Wrongful Death vs. Survival Action
These are two separate claims, and families are usually surprised there are two.
The wrongful death claim under Section 71.004 belongs to the surviving spouse, children, and parents, and compensates their losses.
The survival action under Section 71.021 is the claim your loved one personally owned, carried forward after death. It belongs to the heirs, legal representatives, and estate, a broader group, so a sibling barred from the wrongful death claim may still have a role here as an heir.
The practical difference is money. Wrongful death proceeds are protected from the decedent's creditors; survival proceeds belong to the estate and are not. For a family facing a large final hospital bill, how a settlement is allocated between the two can decide how much they keep. Worth asking any Austin lawyer you interview about.
The Texas Wrongful Death Statute of Limitations, and the Deadlines That Fire Long Before It
The Texas wrongful death statute of limitations is two years from the date of death, set by Section 16.003(b). Note the accrual point: the clock runs from the death, not the injury, which matters when someone is hurt and dies weeks later.
That two-year statute of limitations is the deadline everyone has heard of. The ones that actually catch Austin families are far shorter.
Forty-five days if the City of Austin may be responsible. The Tort Claims Act lets a city charter shorten the six-month statutory notice period, and Austin's published claim deadline is 45 days. A city vehicle, a defective roadway, a signal failure. A family that waits five months to call has likely already lost that claim.
Six months for other governmental units, and no exemplary damages are recoverable against a governmental unit at all.
Three calendar months before the estate's executor is obligated to file under Section 71.004(c).
Sixty days of pre-suit notice before filing any medical malpractice claim.
One more, stated carefully: whether a minor child's claim is tolled past two years is genuinely unsettled in Texas. It may be. No family should rely on it.
What Drives the Value of a Wrongful Death Settlement in Austin
Families ask us what the average wrongful death settlement is. We will not quote you a number, and you should be skeptical of any firm that does before reading the file. Published averages mix a fender-bender fatality with a commercial trucking case and a hospital claim capped by statute, which makes the average a number that describes no real case. What we can tell you is what the number is made of.
Available insurance is usually the ceiling, not the law.
Who the beneficiaries are. A young Austin parent leaving small children presents differently from an adult with no spouse or children whose parents bring the claim.
Earnings and services. Working years remaining, income trajectory, and the household work that now has to be paid for or absorbed.
Whether exemplary damages are in play. Gross negligence, and especially an intoxication manslaughter charge that removes the cap, changes the analysis entirely.
How clean the liability picture is. Every percentage point the defense moves onto your loved one comes straight off the recovery.
Finding Wrongful Death Attorneys Near You in Austin
If you are searching for wrongful death attorneys near me, ask any firm you call one specific question: who in my family is a statutory beneficiary, and is there a survival claim too? A lawyer who does this work answers immediately. A firm that has to look it up is learning on your case. The same test applies whether you searched for a wrongful death lawyer near me or walked in off Sixth Street.
Proximity is worth something real here, and not for the reason people assume. A wrongful death case filed in Travis County is tried under Travis County practice, in front of judges we appear before regularly, with a jury pool drawn from this community. Our wrongful death lawyers file across Travis, Williamson, and Hays counties, and we know how those three courthouses differ.
We represent families throughout Central Texas and maintain dedicated pages for Round Rock, Cedar Park, Georgetown, Leander, Pflugerville, Kyle, and San Marcos.
What to Do in the First Few Weeks
Nobody expects a grieving family to run an investigation. These are the things that cannot wait.
The vehicles. Modern cars store crash data in an event data recorder, and commercial trucks store far more in the engine control module. Once a vehicle is repaired, sold, or scrapped, that record is gone. We send preservation letters the week we are retained.
Video. Austin business and residential cameras overwrite on cycles as short as a week.
The scene. Skid marks, sight lines, signal timing, and roadway condition all change.
You do not need to gather any of it. You need somebody to start before it is gone.
One Claim, Divided Among the Family
Texas recognizes one wrongful death action, not one per family member, and Section 71.010(b) has the jury divide the award in shares among the beneficiaries.
That works when the family agrees. It does not when there is a first family and a second family, an estranged parent who reappears, or adult children from different marriages. Beneficiaries' interests can be genuinely adverse, and one relative filing affects everyone.
Combined with the three-month estate rule, the first ninety days are a coordination problem as much as a legal one.
Why Austin Families Choose SMB Law, PC
Shane M. Boasberg has practiced Texas law for more than two decades, with a background running through private practice, the Texas Legislature, and the Office of the Texas Attorney General. He is recognized by Texas Monthly as a Rising Star and as an Elite Lawyer for 2025, and belongs to the State Bar of Texas, the Austin Bar Association, and the Capital Area Trial Lawyers Association.
We handle Austin wrongful death cases on a contingency fee and advance the costs of investigation and experts. Our client reviews are on Google, Yelp, and the BBB.
At the first meeting the wrongful death attorney handling your case will tell you whether you have a claim, who in your family can bring it, and what the realistic obstacles are. If Texas gives you nothing, we will say that too.
Talk to an Austin Wrongful Death Attorney
Texas wrongful death law is narrower than most families expect. A closed list of who may file. A one-claim rule that divides an award in shares. A comp bar that can eliminate a claim against an employer entirely. And notice deadlines that expire in 45 days, three months, or six months, long before the two years everyone has heard about.
It is also more generous than people realize in the places that matter, particularly where a drunk driver is involved and the ceiling on exemplary damages comes off.
If your family lost someone to someone else's negligence in Austin or the surrounding Travis, Williamson, and Hays counties, call SMB Law, PC at (512) 561-5003 or reach us through our contact page. You will speak with a wrongful death attorney, not an intake screener. The consultation is free, our wrongful death law firm works on contingency, and we handle the personal injury claim from the first call through settlement or trial.
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Frequently Asked Questions
Can a brother or sister file a wrongful death claim in Texas?
No. Section 71.004 limits a Texas wrongful death claim to the surviving spouse, children, and parents, and that list is closed. A sibling has no wrongful death claim even when they are the closest surviving relative. There is one avenue worth exploring: the survival action under Section 71.021 belongs to the heirs, legal representatives, and estate, which is a broader group, so a sibling who is an heir may have a role there. Ask a lawyer to look at both.
Do we have to wait for the criminal case to finish?
No, and waiting is a common and costly mistake. Section 71.006 says a wrongful death action is not precluded because the death was caused by a felony or because a criminal case is pending, and the Texas Constitution says exemplary damages are available without regard to any criminal proceeding. The civil case proceeds on its own timeline. An acquittal does not end it either, because the civil burden of proof is lower. Families who wait for a verdict can run out the two-year deadline doing it.
Can creditors take the money from a wrongful death settlement?
Generally no, and this is one of the better protections in the statute. Section 71.011 provides that damages recovered in a wrongful death action are not subject to the debts of the person who died. Hospital bills, credit cards, and other creditors of the estate cannot reach that money. Important caveat: proceeds from a survival claim belong to the estate and do not carry that protection, which is why how a settlement is allocated between the two claims can matter a great deal.
My stepfather raised me. Can I file for him?
Under the statute, only if he legally adopted you. Texas law makes an adoption order create the parent-child relationship for all purposes, so an adopted child is a "child" under Section 71.004. A stepchild who was never adopted is not, regardless of who raised whom or for how long. This lands hard on blended families and it is worth confirming the legal status early rather than assuming.
What does it cost to talk to a wrongful death lawyer?
Nothing. The consultation is free and carries no obligation, and we handle wrongful death cases on a contingency fee, so there is no attorney fee unless we recover. We also advance the costs of investigation and expert work rather than asking a grieving family to fund them. If we do not think you have a claim, we will tell you at that first meeting.
Wrongful Death Lawyers Serving Nearby Communities
SMB Law, PC represents clients across Central Texas. Choose your city for local court, filing, and case details: