Detailed Answer

Short answer

No — money recovered as wrongful death damages generally does not “pass” under the decedent’s Last Will and Testament. In Texas, wrongful death damages are statutory remedies for certain survivors and are distributed for their benefit under the wrongful-death statutes. By contrast, recovery on a survival claim (damages the decedent suffered before death) is part of the decedent’s estate and can be administered through probate and distributed according to the will.

How Texas law separates the claims

Texas law recognizes two distinct causes of action when a person dies because of another’s conduct:

• Wrongful death action: This is a cause of action that belongs to certain surviving family members for the pecuniary loss and mental anguish caused by the decedent’s death. The recovery is for the survivors.
• Survival action: This is a claim brought on behalf of the decedent’s estate for losses the decedent suffered before death (such as pain and suffering, medical expenses incurred by the decedent). Those damages are estate property and flow into the probate estate.

These rules and the procedures for each are set out in the Texas Civil Practice and Remedies Code, Chapter 71. See Chapter 71, Texas Civil Practice & Remedies Code: https://statutes.capitol.texas.gov/Docs/CP/htm/CP.71.htm

Who receives wrongful death damages in Texas?

Wrongful death damages are for the benefit of the decedent’s surviving spouse, children, and parents — the class of beneficiaries defined by statute. The statutory scheme identifies who may recover and who benefits from the recovery; the proceeds are not distributed according to the decedent’s will. See Texas Civ. Prac. & Rem. Code, Chapter 71: https://statutes.capitol.texas.gov/Docs/CP/htm/CP.71.htm

When does the will matter?

• If a personal representative (executor) brings a survival action and recovers damages for the decedent’s pre-death losses (for example, pain and suffering endured by the decedent before death), those damages become part of the decedent’s estate. Those proceeds are distributed through probate according to the decedent’s will (or, if there is no valid will, under intestacy rules). For Texas intestacy rules, see the Texas Estates Code (for example, Chapter 201 for intestate succession): https://statutes.capitol.texas.gov/Docs/ES/htm/ES.201.htm
• If a surviving spouse or children recover wrongful death damages for their own losses, those funds do not belong to the estate and do not pass under the will.

Practical examples (hypotheticals)

Example 1 — Wrongful death proceeds to survivors:

Anna dies in a crash caused by another driver. Anna’s spouse and two children bring a wrongful death suit and recover $900,000 for pecuniary loss and related damages. The recovery is for Anna’s survivors — it does not become part of Anna’s probate estate and is not distributed according to Anna’s will.

Example 2 — Survival claim paid into estate:

In the same crash, Anna suffered severe pain and medical expenses before dying. The personal representative brings a survival action to recover $100,000 for Anna’s pre-death medical bills and pain and suffering. That recovery is estate property and is distributed through probate under Anna’s will.

Other important considerations

• Settlement structure matters. Plaintiffs and defendants sometimes negotiate how a settlement is allocated between wrongful death and survival claims. Allocation affects whether funds are estate property or belong to survivors.
• Creditors and liens. Estate creditors can make claims against estate assets, including survival recovery. But wrongful death recoveries for survivors are generally for the survivors and not estate assets. Medical providers, health insurers (e.g., Medicare/Medicaid), or hospitals may assert liens or subrogation claims — these can affect the net recovery and often require careful handling.
• Minor children and guardians. When wrongful death funds will be used for minor children, courts often protect those funds (for example, by requiring court approval of settlements or by placing funds in a guardianship or trust). Texas probate courts supervise distributions affecting minors and incapacitated persons.
• Statute of limitations. The wrongful death and survival claims have time limits. In most wrongful death cases in Texas the statute of limitations is two years from the date of death (see Texas Civil Practice & Remedies Code, Chapter 16: https://statutes.capitol.texas.gov/Docs/CP/htm/CP.16.htm). Missing the deadline can bar the claim.

When a will might indirectly affect survivors

Although wrongful death proceeds do not pass under the deceased’s will, the decedent’s estate (through probate) may still affect survivors financially. For example, if the estate has significant debts or if the personal representative uses estate funds to pay funeral expenses or debts, the survivors’ practical financial situation can change. Also, the estate’s ability to pursue a survival claim could increase total recovery for the family as a whole.

Bottom line

Wrongful death damages for the benefit of survivors are distributed under the wrongful-death statute and generally do not pass under the decedent’s will. Damages for the decedent’s own pre-death injuries (survival damages) are estate assets and pass through probate according to the will or intestacy law. If you are involved in a claim after a death, it matters whether the claim is framed and settled as wrongful death or survival — and how any settlement is allocated.

Texas wrongful-death and survival statutes: https://statutes.capitol.texas.gov/Docs/CP/htm/CP.71.htm

Texas statute of limitations overview: https://statutes.capitol.texas.gov/Docs/CP/htm/CP.16.htm

Texas intestacy rules (Estates Code): https://statutes.capitol.texas.gov/Docs/ES/htm/ES.201.htm

Helpful Hints

• Do not assume a will controls wrongful death recoveries. Ask whether each claim is a wrongful death claim (for survivors) or a survival claim (for the estate).
• When settling, get a clear written allocation between wrongful death and survival recovery and consider court approval if minors are involved.
• Talk to the personal representative early. If an estate action may be necessary, the personal representative must be involved to bring survival claims on behalf of the estate.
• Check applicable liens and subrogation rights (medical providers, health insurers) before distributing funds.
• Be mindful of the statute of limitations: filing deadlines are short and missing them will often bar recovery. See Texas Civil Practice & Remedies Code, Chapter 16: https://statutes.capitol.texas.gov/Docs/CP/htm/CP.16.htm
• If there is uncertainty about distribution, settlement structure, or guardianship for minors, seek an attorney experienced in Texas wrongful death and probate law as soon as possible.