Estate Administration

Survival Action

Standing & Capacity

Covington v. Sisters of Charity of Incarnate Word, 179 S.W.3d 583 (Tex. App.—Amarillo 2005, pet. denied).


Intestate died survived by three children. About nine months later, Daughter was properly appointed as the independent administratrix of Intestate’s estate. Sister filed a survival action alleging that Intestate’s death was the result of medical malpractice. After limitations had run, Sister filed an amended pleading adding Daughter as a plaintiff because she was Intestate’s administratrix. The trial court dismissed the action.

The appellate court affirmed. The court explained that Sister never had the capacity to bring a survival action. The addition of Daughter as a plaintiff after limitations had run did not relate back to the time when Sister filed her survival action. Although a post-limitations cure of capacity for a suit filed within the limitations period was approved by the Supreme Court of Texas in Austin Nursing Center, Inc. v. Lovato, 171 S.W.3d 845 (2005), “an amended pleading adding a new party does not relate back to the original pleading.” Id. at 588. Thus, Daughter’s claim was barred by limitations.

Moral: Survival actions should be filed within two years of a decedent’s death by the personal representative of the decedent’s estate.