Texas Wrongful Death Statute of Limitations

Section 71.004 makes the answer narrower than most families expect. A Texas wrongful death claim exists “for the exclusive benefit of the surviving spouse, children, and parents of the deceased.” Only three categories of family members are eligible:

• Surviving spouse — including a common-law spouse where the elements of informal marriage are proven.
• Children — biological or legally adopted, of any age. Adult children have the same right to file as minor children.
• Parents — biological or legally adoptive parents of the deceased.

Any one eligible family member can file on behalf of all eligible beneficiaries, or several can file jointly. Recovery is divided among them based on each beneficiary’s individual losses, not on automatic equal shares. We explain how a Texas wrongful death settlement is divided in a separate guide.

Who cannot file

Siblings cannot file a Texas wrongful death claim — even when a brother or sister was the closest person to the decedent. The same is true for grandparents, aunts, uncles, cousins, stepparents (unless they legally adopted the deceased), and stepchildren (unless they were adopted). Texas courts have repeatedly enforced this restriction, and there is no equitable workaround. For a deeper look at the eligibility rules, see our page on Texas wrongful death beneficiaries.

The 3-month executor rule

Under § 71.004(c), if none of the eligible family members files the wrongful death claim within three calendar months of the death, the executor or administrator of the deceased’s estate must file the claim — unless all of the eligible family members specifically ask them not to. This is a backstop, not a separate filing window. The underlying two-year deadline still applies. In practice, our firm coordinates the family’s wrongful death claims and the estate’s survival action so both are filed together by the right plaintiffs.

Exceptions That Can Pause or Extend the Deadline

Texas recognizes a handful of tolling provisions that pause the running of the two-year limitations period. Tolling is fact-specific and narrowly applied — Texas courts do not extend deadlines as a matter of sympathy. Anyone who thinks an exception may apply to their family should have an attorney review the timeline before assuming the standard deadline does not.

Minors under 18 (§ 16.001)

Section 16.001 treats a person under 18 as being under a legal disability. The time spent under that disability is not counted in the limitations period. So if a child loses a parent at age 12, the child’s individual wrongful death claim generally does not need to be filed until two years after the child’s eighteenth birthday. Two important caveats apply:

• Tolling protects the minor’s own claim only. Adult family members’ claims are not extended because one of the beneficiaries is a child.
• A guardian, parent, or court-appointed “next friend” can — and almost always should — file on the minor’s behalf much sooner, because evidence preservation and witness availability suffer over time regardless of who the plaintiffs are.

Mental incapacity / “unsound mind” (§ 16.001)

Section 16.001 also tolls limitations when a claimant is of “unsound mind” at the time the cause of action accrues. A family member in a coma at the time of the death, suffering severe cognitive impairment, or otherwise unable to manage their own affairs may have the deadline paused until capacity is restored. Texas courts require actual evidence of true legal incapacity — emotional distress, grief, depression, or being temporarily overwhelmed are not enough.

The discovery rule

In limited circumstances, the statute of limitations does not begin running until the family discovers — or, with reasonable diligence, should have discovered — the cause of death. The Texas Supreme Court has held that the discovery rule applies only when an injury is both “inherently undiscoverable” and “objectively verifiable.” Wrongful death contexts where the rule has been recognized include:

• Asbestos exposure and mesothelioma, where the disease may not appear for decades.
• Certain defective pharmaceuticals with delayed-onset fatal complications.
• Some forms of medical malpractice where the cause-and-effect link between treatment and death is not apparent for months or longer.

Texas applies the discovery rule narrowly. Most wrongful death fact patterns do not qualify.

Fraudulent concealment

When a defendant actively conceals their role — for example by hiding records, lying about safety testing, falsifying maintenance logs, or misrepresenting product defects — Texas law may toll the deadline until the fraud is discovered or reasonably should have been discovered. Like the discovery rule, this doctrine requires affirmative proof of concealment and is applied narrowly.

Defendant absent from Texas (§ 16.063)

Section 16.063 provides that when the defendant is absent from Texas after the cause of action accrues, the time of their absence does not count against the limitations period. Out-of-state corporate defendants registered to do business in Texas typically cannot rely on this rule, but it occasionally extends the time against an individual defendant who has fled the state.

Shorter Deadlines That Can Trump the Two-Year Rule

Several categories of cases carry filing or notice deadlines that are much shorter than two years. These deadlines do not replace the § 16.003 limitations period — they are additional procedural hurdles that, if missed, can defeat the claim before it ever reaches the merits.

Texas Tort Claims Act notice — 6 months

If a Texas governmental entity (a city, county, state agency, public school district, transit authority, public hospital, etc.) caused or contributed to the death, the family must give that entity formal written notice within six months under § 101.101. The notice has to reasonably describe (1) the damage or injury, (2) the time and place of the incident, and (3) the incident itself. Miss it, and the claim against the governmental entity is barred — even though the broader two-year deadline has not yet expired.

City of Houston notice — 90 days

Section 101.101(b) of the Texas Tort Claims Act expressly ratifies city charter notice provisions, and the City of Houston’s charter requires notice within 90 days. Other Texas municipalities have their own charter-based shortened periods. If the fatal incident involved a City of Houston vehicle, sidewalk, employee, METRO bus, or other local governmental property — including in Harris, Fort Bend, or Montgomery County — confirm the applicable charter deadline within days, not weeks.

Medical malpractice — 60-day pre-suit notice (§ 74.051)

A healthcare liability claim — including a wrongful death claim against a doctor, hospital, nurse, or other healthcare provider — requires written notice of claim at least 60 days before filing suit under § 74.051. The notice must be served by certified mail and accompanied by a statutory medical records authorization. Proper notice tolls the limitations period for 75 days, but the authorization form is technical, courts strictly enforce its requirements, and a botched notice can extinguish the case. Medical-malpractice wrongful death cases also require service of a qualifying expert report within 120 days after each defendant’s answer.

Product liability statute of repose — 15 years (§ 16.012)

Section 16.012 bars most products liability claims for products sold more than 15 years before the injury, with limited exceptions for extended manufacturer warranties and certain disease cases. When a fatal accident involves an older machine, vehicle, or industrial product, the statute of repose can foreclose a product liability claim independently of the § 16.003 limitations period — and the repose clock cannot be tolled.

Wrongful Death Claim vs. Survival Action — Different Deadlines

Most Texas families bring two separate claims after a fatal accident. Both run on different two-year clocks, and treating them as if they share a deadline is one of the most common — and most costly — mistakes.

The wrongful death claim is brought by the surviving spouse, children, and parents under § 71.002 and § 71.004. It compensates the family for their losses — loss of companionship and society, loss of consortium, mental anguish, loss of financial support, lost inheritance, loss of parental guidance, and funeral expenses. The clock is two years from the date of death.

The survival action is brought by the estate’s personal representative under § 71.021. It compensates for what the decedent experienced between injury and death — pre-death medical bills, the decedent’s conscious pain and suffering, and lost earnings during that period. The cause of action survives the death, so the two-year clock runs from the date of the underlying accident, not the date of death.

How that plays out in practice. If your spouse is injured on June 1, 2024, and dies from those injuries on December 1, 2024, the survival deadline is generally June 1, 2026; the wrongful death deadline is December 1, 2026. The two claims usually proceed together in a single lawsuit, but they have separate plaintiffs, separate damage categories, and separate deadlines. Our overview of survival actions versus wrongful death claims walks through the distinctions in more depth.