When a family loses someone because of another person’s carelessness, they are usually told they have a wrongful death case. That is only half of it. Texas law creates two different claims out of the same death. They belong to different people and they pay for different losses, and families who only hear about one of them often leave the other behind.
For the families this firm represents there is usually a third question underneath both of those, and nobody brings it up first. What happens if half the family lives in Mexico. What happens if the person who died did not have papers. Those questions come later in this article, because they are the ones that stop people from calling at all.
The wrongful death claim belongs to the family
Chapter 71 of the Texas Civil Practice and Remedies Code sets the rule. A person is liable when an injury causing death was caused by their wrongful act, neglect, carelessness or default. That reaches a distracted driver, a trucking company that kept an unfit driver on the road, a property owner who ignored a hazard he knew about, and an employer who sent a crew somewhere it knew was unsafe.
The claim exists for the exclusive benefit of three groups, and only three: the surviving spouse, the children, and the parents. Any one of them may file for the benefit of all. Siblings cannot bring a wrongful death claim in Texas, and neither can grandparents. That rule surprises families more than any other part of the statute.
What it pays for is the family’s own loss: the financial support the person would have provided, the care and services they gave, loss of companionship, and mental anguish. A jury awards damages proportionate to the injury caused by the death, then divides the award among the family members entitled to recover.
The survival claim belongs to the estate
The second claim is easy to miss because its name is technical. Under Section 71.021, a personal injury claim does not end when the injured person dies. It survives to the heirs and the estate, and may be pursued as if everyone were still living.
The wrongful death claim asks what the family lost going forward. The survival claim asks what the person went through before they died. It covers medical bills between the injury and the death, the earnings lost in that window, funeral and burial expenses, and conscious pain and suffering.
This is why the time between injury and death matters so much. Someone who dies at the scene and someone who spends eleven days in intensive care produce very different survival claims, even when the wrongful death side looks identical. Most cases plead both together. What separates them is who gets paid: wrongful death proceeds go to the family, survival proceeds pass through the estate, where creditors can reach them.
When the family is in Mexico
If your family is split between Texas and Mexico, you are carrying a version of this case that most Texas firms have never had to work. That is worth knowing before you decide who to call.
Start with what the statute does not say. The list of people who may bring a wrongful death claim is a list of relationships: the surviving spouse, the children and the parents. There is no citizenship requirement in it and no residency requirement in it. A mother in Michoacán is on that list on the same terms as a mother in Mesquite.
There is a provision almost nobody cites that matters more than any of this. When a defendant asks a Texas court to send a case abroad, Texas law says the court may not dismiss the claim of someone whose damages were caused by the death of a Texas resident, and the Texas Supreme Court has held each beneficiary counts in their own right. So when the person who died lived in Texas, his mother in Michoacán cannot be sent to a Mexican court. That is not the judge’s discretion. The statute forbids it.
The obstacles here are rarely legal. They are practical. Documents have to be signed in another country and notarized in a way a Texas court will accept. Heirship has to be established across two systems. There is often a consulate involved, and often a body to bring home. Meanwhile the Texas clock is running and nobody in the family is in a position to notice. Manuel Diaz was born in Mexico City, the firm works across Mexico, Costa Rica, Colombia and the United States, and relatives abroad are spoken to in Spanish.
Immigration status, and the question nobody asks out loud
Families ask this one last, quietly, and usually after they have already decided not to call. Does it matter that he did not have papers. Will making a claim put the rest of us at risk.
Chapter 71 conditions the claim on a family relationship and on someone else’s wrongful act, not on immigration status, of the person who died or of the family bringing it. Texas courts have gone further. A Texas court of appeals held that Texas law does not require citizenship or a work authorization permit to recover damages for loss of earning capacity, and when defendants argued a 2002 federal labor ruling had changed that, another Texas court held it does not reach ordinary injury damages.
Being straight about the rest of it, because a website that promises too much here does the same thing the fear does. Status has nothing to do with how a collision happened. On damages a defendant can try to raise it. What is settled is that your status is not a bar to the claim, and that is the part that decides whether to pick up the phone.
Attorney Manuel Diaz made the point to the Mexico City daily La Crónica de Hoy, talking about why so few families use a right they already have:
“Una de las cosas que nosotros tratamos de promover en los medios es que nuestra gente adopte esa cultura de que el abogado que yo contrato es la persona que, dentro de este sistema, está ahí para defenderme. Y no lo que pasa muchas veces, que lo dejan en manos del gobierno o lo dejan a las manos del ‘vamos a ver qué pasa’, porque no tengo la manera de protegerme.”
One of the things we try to promote is that our people understand the lawyer I hire is the person who, inside this system, is there to defend me. Not what happens so often, where they leave it in the hands of the government, or leave it to let’s see what happens, because I have no way to protect myself. The full interview is on our site.
The deadline is two years, and there are two of them
Section 16.003 gives two years from the day a claim accrues. For the wrongful death claim that means two years from the death, not from the date of the crash. The survival claim runs on a different clock: because it is the injured person’s own claim continuing, it runs from the injury. When someone is hurt and dies months or years later, one of the two can already be gone while the other looks fine. A separate rule suspends the clock for twelve months after a death, but it stops the moment an executor is appointed, which is worth reading twice if the heirs are abroad.
The practical deadline is far shorter than the legal one, because evidence in serious cases is perishable in ways families never see. A carrier’s electronic logging data, driver qualification file and post-crash drug screen sit inside a company that already knows it is exposed. Surveillance video is often overwritten within weeks. Event data recorders leave for salvage auction with the vehicle. Getting a preservation letter out is frequently the most valuable thing that happens in the first month. Our page on trucking and 18 wheeler cases covers what that looks like.
What happens when you call
You do not have to know whether you have a case to make the call, and nothing is filed or decided that day. Three steps. First, one conversation, in Spanish if that is easier, about what happened and who is in the family. That is where the two claims get sorted out and which clock is running. Second, the evidence that disappears gets preserved. Third, you get told where you stand, including the parts that are not good news. If relatives are abroad, that work starts at the same time rather than at the end.
What to gather now
The useful items are ordinary: the death certificate, the crash or incident report, names for anyone who saw what happened, photographs from the scene, medical records and bills between the injury and the death, proof of earnings, and the funeral invoice. If relatives are abroad, add their full legal names as they appear on their own documents, where they live, and who among them can realistically sign paperwork. That list usually decides how fast the case can move.
Frequently asked questions
Can siblings file a wrongful death claim in Texas?
No. Chapter 71 limits the claim to the surviving spouse, children and parents. A sibling may still be an heir for purposes of the estate’s survival claim, which is a separate question that depends on the will or on Texas intestacy law.
Does immigration status affect a wrongful death claim?
The statute conditions the claim on a family relationship and on someone else’s wrongful act, not on immigration status, and Texas courts have held that neither citizenship nor a work authorization permit is a prerequisite to recovering for lost earning capacity. Whether a defendant can raise it on damages depends on what they can prove.
What if the family lives in Mexico?
Yes. The statute’s list is a list of relationships and carries no citizenship or residency requirement, and Texas law forbids a court from dismissing the claim of a beneficiary of a Texas resident on the argument that it belongs abroad. The practical work is in documents, signatures and heirship across two countries, in Spanish.
How long do we have to file?
Two years, but the two claims can start on different days. Wrongful death runs from the date of death, the survival claim from the injury. A separate rule suspends the clock for up to twelve months after a death, ending as soon as an executor is appointed. Claims involving medical care run on their own statute. Assume a clock is already running.
What if the person who died was partly at fault?
Texas uses a proportionate responsibility system, and a claim may still proceed when the person who died carried some share of the responsibility, up to a limit. It is one of the more common reasons families wrongly assume they have no case.
Contact Our Wrongful Death Lawyers Today
A family should not have to become an expert in Chapter 71 during the worst month of their life. That is the part you are hiring out. At Manuel Diaz Law Firm, PC, we move early to preserve evidence, we work out which claims belong to the family and which to the estate, and when the family is split across borders we handle both ends. Manuel Diaz was born in Mexico City and has spent his career representing Spanish-speaking families in Texas courts. Read more about our wrongful death practice or our full personal injury practice. If the injuries were survivable but permanent, our article on catastrophic injuries in Texas covers what those claims involve.
There is no fee unless we win your case. Please call (855) 900-3429 today for a free case evaluation with our wrongful death lawyers. Manuel Diaz Law Firm, PC serves clients throughout Texas, including Dallas, Fort Worth, San Antonio, Denton, Mesquite, and other nearby areas.
Zealously Serving Clients Throughout Texas
Manuel Diaz Law Firm, PC represents families from offices in Dallas, Fort Worth, Denton, Mesquite and San Antonio. Hablamos español, and we have since the firm opened. You can reach us through our contact page or meet our attorneys here.
This article is general information about Texas law and is not legal advice. Reading it does not create an attorney-client relationship. Every case turns on its own facts.
