50:5 Accounting For the Neglected: Taking Steps Toward More Equitable Treatment of Stepchildren In Texas’s Wrongful Death Statute


In the United States, stepchildren have historically suffered shameful treatment under the law in comparison to their blood-related counterparts. As one commentator wrote in 1936, “[Stepchildren] have been practically forgotten, so far as general legislation is concerned.” In the context of Texas’s wrongful death statute, this unfortunate legacy survives. Stepchildren in Texas cannot recover damages for the wrongful death of their stepparent regardless of the extent of their economic reliance on the decedent or the closeness of their personal relationship with the decedent.

This inflexible rule fails to consider the relationship that a stepchild has with his stepparent, leading to inequitable results. The injustice of categorically denying wrongful death recovery to stepchildren after the death of their stepparent can best be illustrated through the following hypothetical situation: Jane is born out of wedlock to a single mother. When Jane turns one, her mother meets and marries Richard, who adores and provides for Jane throughout Jane’s childhood and adolescence. Though Richard does not adopt Jane, he considers her his daughter, and Jane considers Richard her father.

While driving home from work, Richard’s car is struck by a drunk, on-duty UPS driver. After Richard’s death, an illegitimate child he conceived when he was 20-years-old, but never met, successfully recovers under Texas’s wrongful death statute as a result of Richard’s death. When Jane attempts to recover, she finds that only biological children can recover under the statute. The unequal plight of current and future “Janes” in Texas should provide sufficient justification to change the wrongful death statute in Texas. Steps must be taken to reshape this legal area, which is out of touch with the modern construction of what constitutes a nuclear family.

As Justice William J. Brennan famously said, “Law cannot stand aside from the social changes around it.” In few other areas of the law is this idea more applicable than in stepchild recovery under wrongful death statutes. In light of mounting evidence reflecting the ubiquity and social acceptance of stepfamilies, the Texas Legislature should reconsider its outdated stance on stepchild recovery under the wrongful death statute. Principally, the Texas Legislature should adopt a more equitable rule where stepchildren may recover if they “reasonably relied” on a stepparent for financial support, or where recovery is possible if an in loco parentis relationship exists.

This Comment will begin with a brief discussion of the evolution of the stepfamily in the United States. Second, it will analyze the roots of wrongful death recovery in the United States. Third, it will examine the current state of Texas’s wrongful death statute and its common law interpretations. Fourth, it will analyze related national legal trends that might be used to support an argument for stepchild wrongful death recovery in Texas. Fifth, it will discuss Texas’s inclusion of stepchildren in definitions of “children” within other statutes. Sixth, it will evaluate the approaches other states have taken in allowing stepchildren to recover in wrongful death actions. Lastly, it will discuss several possible options available for updating Texas’s wrongful death statute with regard to stepchild recovery and will recommend that Texas adopt an option that is the most practical and equitable.