Texas Civil Practice & Remedies Code § 71.021 – Legal Claims That Survive Death
Table of Contents
Statutory Text:
§ 71.021(a): A cause of action for personal injury does not abate because of the death of the injured person.
§ 71.021(b): The cause of action survives and may be brought on behalf of the estate by the decedent’s legal representative.
§ 71.021(c): Recovery in a survival action is for the estate, not for individual family members.
What Is the Texas Survival Statute?
The survival statute allows a deceased person’s estate to pursue a personal injury claim the decedent could have filed if they had survived.
It differs from a wrongful death claim, which compensates family members for their loss. A survival claim is about the harm suffered by the decedent before death.
What Damages Can Be Recovered in a Survival Action?
The estate may recover:
Medical expenses
Pain and suffering before death
Lost earnings (from the date of injury to death)
Property damage
Funeral expenses (in some cases)
These damages go to the estate and are distributed per the will or intestate law.
Key Differences: Survival Action vs. Wrongful Death
| Survival Statute (§ 71.021) | Wrongful Death Statute (§ 71.002–.004) |
|---|---|
| Filed by the estate representative | Filed by spouse, children, or parents |
| Based on harm to the decedent | Based on harm to surviving family |
| Benefits the estate | Benefits individual family members |
| Can include pain before death | Can include loss of companionship |
Example Scenario
A patient suffers a medical injury and lives for several months before dying. The estate can sue under § 71.021 to recover:
Medical bills
Pain and suffering before death
Lost wages between injury and death
Separately, the family may also bring a wrongful death claim under § 71.002.
Who May File a Survival Action?
Executor or administrator of the estate
Must represent the estate’s interests
If no representative is appointed, heirs may be permitted to proceed under court supervision
Related Statutes
§ 74.001 – Definitions in Health Care Liability Claims
Texas Case Law Interpreting § 71.021
Held that survival claims must be brought by the estate’s legal representative. Heirs cannot bring the claim unless formally representing the estate.
Reinforced that survival claims are independent of wrongful death claims and require different proof and procedures.
Frequently Asked Questions About § 71.021
Houston Personal Injury Lawyer - Joel A. Gordon
It is a lawsuit brought by a decedent’s estate to recover damages the deceased could have claimed had they lived.
Survival actions recover for the decedent’s harm, while wrongful death compensates family members for their personal loss.
The estate receives the recovery. The funds are distributed according to the will or Texas intestacy laws.
Only if they are appointed as the executor or administrator of the estate, or receive court permission to represent the estate’s interests.