Contributory Negligence of the Surviving Spouse Does Not Prevent Recovery by Other Beneficiaries of the Deceased Spouse Under the Texas Wrongful Death Act

The Texas Supreme Court held in Schwing v. Bluebonnet Express, Inc. that the contributory negligence of a surviving spouse does not bar recovery by other statutory beneficiaries of the deceased spouse in an action under the Texas Wrongful Death Act. In sum, the effect of Schwing is to permit judgments which were previously precluded by operation of the community property defense. The author argues that Schwing provides some measure of financial protection to dependent children and parents of a deceased spouse because their claims are no longer barred by the community property defense. The author suggests courts should allow contribution between the third party tortfeasor and the offending spouse by abolishing the doctrine of interspousal immunity in wrongful death actions.