Losing someone you love because of another person’s negligence goes far beyond heartbreak. It leaves you overwhelmed by grief, stress, and the painful question, What now?
If your family member died in an accident in Texas or New Mexico, the law gives you a way to seek justice. But not every claim is the same. You’ve likely heard the terms “wrongful death” and “survival claim.” Understanding how they differ and how they can work together can shape what recovery looks like for your family.
Let’s clear up the difference between wrongful death vs. survival action claims, how they work, and why you may need both to protect everything your family lost.
For a free consultation, please contact us online or call (575) 222-1000 today.
What’s the Difference Between Wrongful Death and Survival Action Claims?
At a glance, these claims sound similar, but they serve very different purposes. Let’s break them down.
A wrongful death claim belongs to the deceased’s surviving family members.
It seeks compensation for what they lost as a result of the death caused by someone’s negligence, including:
- Lost income and financial support;
- Loss of care, guidance, and services;
- Loss of love, companionship, and comfort;
- Mental anguish and emotional suffering; and
- Funeral and burial costs.
A survival claim works slightly differently. This type of claim belongs to the deceased’s estate. It focuses on what your loved one endured before passing due to someone’s negligence.
This can include:
- Medical expenses before death,
- Physical pain and emotional distress,
- Lost income between injury and death, and
- Property damage and other financial losses.
Think of a survival claim as the personal injury case your loved one could have filed against the negligent party if they had survived.
Let’s look at an example that includes both of these claims. Say your spouse was critically injured in a car crash and passed away two days later in the hospital.
You could bring:
- A survival action claim—for their pain, suffering, and medical care before passing; and
- A wrongful death claim—for your losses, such as the income they would have earned, the care they gave your family, and the emotional impact their death has on you.
Together, these two claims try to make a complete account of what your family has endured.
Who Can File These Claims in Texas?
Texas law separates who may file each type of claim.
Wrongful Death in Texas
Spouses, children (including adult children), and parents can file a lawsuit for wrongful death. The estate executor may step in if no one files within three months.
Survival Actions in Texas
Survival actions follow the Texas Survival Statute. The estate’s legal representative must file these claims. The claim survives the victim and allows the estate to pursue damages the person could have recovered if they had lived.
Who Can File in New Mexico?
New Mexico also distinguishes between the two claims, with a few key differences.
Wrongful Death in New Mexico
Wrongful death claims must be filed by the estate’s personal representative, whether named in a will or appointed by the court. However, the money recovered benefits surviving family members who are eligible under New Mexico law. Depending on the family’s structure, this could include a surviving spouse, children, or parents.
Survival Actions in New Mexico
A New Mexico survival action allows the estate to recover for the victim’s injuries before death. The personal representative files the claim, and any compensation becomes part of the estate to be distributed under the will or New Mexico inheritance law.
What If Death Was Instant?
When a loved one dies instantly, a survival claim may not apply. Survival damages require proof that the person experienced pain or awareness before passing.
However, in cases where death appeared to be immediate, don’t assume a survival claim is off the table. The key factor is whether your loved one experienced any period of awareness or suffering before they passed. That could be seconds or hours.
Medical records, eyewitness accounts, and expert testimony often help establish whether pain and consciousness were present. A skilled attorney can work with forensic professionals to assess this carefully and determine whether survival damages may apply.
Why You Might Need to File Both
Pursuing both types of claims offers a more complete path to justice. One gives voice to your loved one’s suffering. The other protects your family from shouldering financial loss alone.
These claims can cover unpaid medical bills, replace lost income, and compensate for emotional harm. More importantly, they affirm that a preventable death should not be ignored or minimized. Whether it was a negligent driver, a careless employer, or a company that put profits ahead of safety, the law gives your family the means to hold them responsible.
In some cases, moving forward with a wrongful death and a survival action can help reveal important details that might otherwise be missed. Medical records and witness statements can show whether your loved one was conscious or in pain before passing, which may support a survival claim.
At the same time, financial documents and family testimony can show the full impact of the loss. Filing both claims helps ensure the court sees everything your family has endured and that no part of your loved one’s experience (or your own) is left out.
Timing Matters in Both Types of Claims
Both Texas and New Mexico have strict deadlines for these claims. In most cases, you have two or three years from the date of death to file. This deadline is called the statute of limitations.
Miss it, and your family could lose the right to recover. That’s why it’s important to understand the difference between wrongful death and survival action claims and talk with a knowledgeable attorney who can help protect your rights.
We’re Here to Help You Through This
Grieving the loss of a loved one is difficult enough. Understanding your legal options, especially the difference between a wrongful death vs. a survival action, shouldn’t add more stress.
At Tawney, Acosta & Chaparro, P.C., we help families across Texas and New Mexico make sense of these complex claims. Whether you need to file a wrongful death claim, a survival action, or both, our experienced legal team is here to guide you every step of the way with care and compassion.
We’ll take the time to understand your situation, explain your options, and help you pursue the path that best supports your family’s future.
Call us at (575) 222-1000 or fill out our online form today for a free, no-obligation consultation. We’re here to help you move forward.
Daisy Chaparro
Daisy Chaparro is an El Paso native committed to serving her community through compassionate and effective legal representation. After graduating from El Dorado High School, she earned her Bachelor of Arts in Political Science with a minor in Philosophy from St. Mary’s University. Daisy went on to earn her Juris Doctor (magna cum laude) from Texas Tech University School of Law in 2015. She proudly represents clients with a dedication rooted in her deep ties to the border region.
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