Wrongful Death Damages in Texas

The infographic above shows the three main categories. The sections below break down each one, starting with the critical distinction between wrongful death damages and survival action damages.

What Is the Difference Between Wrongful Death Damages and Survival Action Damages?

Wrongful death damages compensate the surviving family for what they lost after the death. Survival action damages compensate the estate for what the deceased endured before death. Texas law treats these as two separate pools of money under two separate statutes, and they do not overlap.

Under Section 71.010, each surviving spouse, child, and parent holds a separate wrongful death claim. Those individual claims add together into the family's total recovery. Under Section 71.021(b), the personal representative of the estate files a survival action on the deceased's behalf. A longer survival period between injury and death typically means a larger estate recovery because there is more documented suffering and more pre-death medical expenses.

Because these pools are separate, filing only one claim leaves the other entirely unrecovered.

Why Must Your Family File Both Claims to Maximize Recovery?

The survival action alone can add $10,000 to $2,000,000+ to the total recovery depending on how long the deceased survived after the injury and the severity of their suffering. If your loved one spent weeks in the ICU before passing, every day of documented pain and every medical bill carries recoverable value that only the survival action reaches.

Economic damages are typically the largest single component of a wrongful death claim.

What Economic Damages Can Your Family Recover in a Wrongful Death Case?

Economic damages in a Texas wrongful death case fall into four categories: (1) loss of earning capacity, (2) loss of benefits including health insurance, pension, and retirement contributions, (3) loss of household services, and (4) loss of inheritance. These are the pecuniary losses (financial losses measured in dollars) that a forensic economist quantifies using the deceased's age, income, years remaining to retirement, and life expectancy tables.

• Loss of earning capacity: The total income the deceased would have earned over their remaining working life. A 35-year-old earning $80,000 annually with 30 years to retirement produces a fundamentally different figure than a 65-year-old retiree.
• Loss of benefits: Health insurance, pension contributions, 401(k) matching, Social Security benefits, and other employer-provided compensation the family will no longer receive.
• Loss of household services: The economic value of unpaid labor the deceased performed: childcare, home maintenance, cooking, transportation. Courts assign a dollar value based on replacement cost.
• Loss of inheritance: The portion of future savings and assets the deceased would have accumulated and passed to heirs.

El Paso median household income is $59,745, which is 24% below the Texas statewide median of $78,476 (Census 2020-2024 ACS 5-year estimates). This baseline is one starting point for lost earnings calculations, adjusted for the individual deceased's actual earnings and career trajectory.

Insurance companies contest economic projections by arguing the deceased was not the primary breadwinner or by challenging the income growth assumptions in future earnings calculations. A wrongful death attorney demonstrates economic loss through forensic accounting, vocational experts, and employment records to counter these tactics.

How Do Pre-Existing Conditions Affect Economic Damages?

Pre-existing conditions do not eliminate liability. The eggshell plaintiff rule requires the defendant to take the victim as found. Defendants use pre-existing conditions to argue for a shorter life expectancy and lower future earnings projections. Your attorney counters with medical records showing the deceased was actively working, managing their condition, and had a normal or near-normal life expectancy at the time of injury.

Are Funeral and Burial Costs Recoverable as Economic Damages?

Yes. Funeral and burial expenses are fully recoverable under Section 71.010. The defendant's estate or insurer must reimburse documented costs, including the funeral home invoice, casket or cremation, cemetery plot, headstone, and transportation.

Economic damages are measurable. The losses families describe as most devastating fall under non-economic damages.

What Non-Economic Damages Are Available for Loss of Consortium, Mental Anguish, and Grief?

Mental anguish, loss of companionship, loss of comfort, and loss of parental guidance are all recoverable as non-economic damages in a Texas wrongful death case. Mental anguish and loss of companionship are the two largest categories. Neither is subject to a statutory cap in standard wrongful death claims.

Loss of consortium (also called loss of companionship) under Section 71.010 covers the loss of love, comfort, care, affection, society, and moral support. Insurance companies undervalue these claims by questioning the closeness of the family relationship or arguing the beneficiary was emotionally distant. Testimony, photographs, regular communications, and witness statements establish the depth of each relationship and counter these arguments at trial.

Can Each Family Member Recover Separately for Loss of Companionship?

Yes. Each eligible beneficiary under Section 71.004 (surviving spouse, each child, and each parent) has an independent claim for loss of consortium and mental anguish. A family with a surviving spouse and three children produces four separate claims, and one person's recovery does not reduce another's. More eligible beneficiaries mean a higher combined non-economic recovery.

Compensatory damages replace what the family lost. Punitive damages hold the defendant accountable for how they caused that loss.

When Are Punitive Damages Available in a Texas Wrongful Death Case?

Punitive damages are available when the defendant's conduct amounts to gross negligence under Section 41.003. They add a third dollar layer on top of economic and non-economic damages. The cap under Section 41.008 sets the maximum at the greater of $200,000 or two times economic damages plus non-economic damages (with the non-economic portion capped at $750,000). In a case with $1,000,000 in economic damages and $500,000 in non-economic damages, the cap allows up to $2,500,000 in punitive damages. When gross negligence evidence is strong, that exposure creates substantial settlement pressure before trial.

DUI wrongful death is the strongest scenario for punitive damages in Texas wrongful death cases. The $190 million verdict against View Homes Inc. (New Mexico, April 2025) illustrates the scale of punitive exposure in cases involving intoxicated defendants.

Why Do DUI Wrongful Death Cases Produce the Strongest Punitive Damages Claims?

The defendant's conscious decision to drink and then drive satisfies the gross negligence standard under Section 41.001(11) in nearly every case. The intent element is straightforward to prove because the choice to drive intoxicated is deliberate, and objective evidence like BAC results and dashcam footage typically supports the claim. Courts and juries consistently award both compensatory and punitive damages in these cases, which is why DUI wrongful death produces some of the largest verdicts in Texas.

While standard wrongful death cases have no cap on non-economic damages, medical malpractice wrongful death is governed by a separate statutory framework that imposes strict limits on what your family can recover.

What Is the Texas Medical Malpractice Cap on Wrongful Death Damages?

Texas caps non-economic damages in medical malpractice wrongful death cases at $250,000 per physician and $500,000 total from all institutions under Section 74.301. Economic damages are not subject to the same cap, but a separate inflation-adjusted overall wrongful death cap of approximately $2.6 million under Section 74.303 limits total recovery across all damage categories.

Because the non-economic cap restricts that portion of recovery, the economic damages presentation becomes the primary driver of case value. A strong economic case can recover millions even under the cap, while a weak one leaves the family closer to the statutory maximum for non-economic losses. For a complete breakdown of how the cap changes litigation strategy, see wrongful death damages and caps in Texas.

Defendants in medical malpractice wrongful death cases argue the death resulted from the underlying medical condition, not the malpractice. That defense makes the Chapter 74 expert report (due within 120 days of filing) essential. The expert must establish the standard of care, how it was breached, and how the breach directly caused the death.

The total recovery in any wrongful death case depends on more than adding up damage categories. Legal adjustments for fault, interest, and taxes can significantly change the final number.

How Does a Wrongful Death Attorney Calculate Your Family's Total Damages?

Your attorney builds the damages calculation in layers. Expert analysis establishes the base figures, and legal adjustments change the total.

• Forensic economist: Applies present-value calculations to project lost earning capacity.
• Vocational expert: Establishes the deceased's career trajectory and earning potential.
• Grief counselors or psychologists: Document each beneficiary's emotional losses to support non-economic damages claims.

The calculation starts with identifying who is eligible to file a wrongful death claim in Texas, because each beneficiary's individual losses factor into the total.

Proportionate responsibility under Section 33.001 can reduce the total recovery. If the deceased was 20% at fault, your family's damages are reduced by 20%. If the deceased was 51% or more at fault, recovery is barred entirely.

Prejudgment interest increases the total award for every year the case takes to resolve. Under Section 304.103, it accrues at 6.75% simple interest, starting 180 days after written notice to the defendant or on the date the lawsuit is filed, whichever comes first. On a $1,000,000 award, that adds $67,500 per year before judgment.

Families should also understand how settlement proceeds are taxed. Most wrongful death compensatory damages are tax-free under federal law, but punitive damages are fully taxable. Whether wrongful death settlements are taxable affects how your attorney structures the settlement allocation.