Written by attorney Joseph Brent Stephens

Who Has the Right to Sue for Wrongful Death?

Texas law limits the class of individuals who have the right to bring a claim. It says that only a spouse, child or parent of the decedent may recover money. An adopted child has the same rights as a biological child. Further, a parent who has legally adopted a child can bring a suit for the wrongful death of the adopted child. A common-law spouse also has a right to make a claim. Generally, common-law is proved when a couple lives together as husband and wife, and represents by words and actions that they are common-law married. Contrary to popular belief, there is no set time-period of cohabitation, so it possible for a common-law marriage to take place once the couple informally agrees to be married as between them, lives together, and tells everyone they are married. No exact words or actions are necessary, and each case is decided under its own circumstances. A common-law marriage is just as valid as a ceremonial marriage that takes place in front of a Judge or a preacher. Sometimes, common-law marriages are established by filing a declaration of informal marriage, but that is not necessary to establish the validity of the marriage. A common law marriage can be established in a wrongful death lawsuit after the loved one's death. A spouse who was separated or abandoned at the time of the decedent's death can bring a wrongful death suit. Further, a spouse who remarries after the decedent's death can bring a wrongful death suit, though the fact of remarriage is admissible in the trial of the case. In Texas, same-sex marriages are unlawful; thus, spouses from such marriages do not have standing to sue for wrongful death. The parents of unborn children have a right to sue under the Wrongful Death Act, unless the unborn child was killed as a result of medical negligence.

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