What Happens if a Plaintiff Dies During a Lawsuit?

When a plaintiff dies during litigation, what happens? Their death can change what happens during the lawsuit, but it won’t necessarily end the case. Let’s examine what can happen if a plaintiff passes away during a civil lawsuit, the procedural rules that might apply and how a lawyer’s knowledge can be critical.

Typically, the late plaintiff’s attorney needs to inform the court and other parties involved when their client dies. Filing a one-page notice may be enough in some jurisdictions, but in other jurisdictions, the procedure may be more complex. The plaintiff’s attorney can also include information about amending the complaint, such as adding surviving loved ones as plaintiffs or filing a wrongful death lawsuit.

Procedures and applicable laws may vary by jurisdiction. For example, Florida law says that no cause of action dies with a person. Amending lawsuits after a plaintiff dies is also a long-standing legal process in California.

Statutes of limitations can be a factor and can differ depending on the jurisdiction, especially if your attorney plans to add defendants. An attorney familiar with procedures in your jurisdiction can be essential to deciding the correct actions for your case.

How the courts and attorneys handle a plaintiff’s death can also depend on the phase the lawsuit is in when the plaintiff passed away.
Individual courts may also have procedures to handle certain circumstances.

Survival actions

Some courts use a procedure called a survival action to allow the survivors of a deceased party to either file or continue a lawsuit. Some jurisdictions may allow their loved ones to sue only for economic damages. They may not sue for pain and suffering, loss of consortium or other non-economic damages. Applicable economic damages might include medical and funeral expenses.

Wrongful death claims

If a plaintiff dies as a result of the injuries related to their lawsuit, their survivors can ask their attorney to file a separate wrongful death claim.

The family or representative(s) of the decedent may be able to pursue non-economic damages, such as emotional distress, in addition to economic damages.

Probate

Courts may use a process called probate to authenticate the decedent's will and appoint a personal representative to handle affairs (including paying off debts, notifying heirs and distributing property). The personal representative named to continue a civil lawsuit may be named during probate. In some cases, you may need help from another attorney with experience in probate court.

Law firms have litigated many cases that continued after the original plaintiff’s death. They include:

• Asbestos cases, which sometimes involve loved ones continuing to pursue claims after the plaintiff died from diseases such as mesothelioma, lung cancer or asbestosis
• Burn injury claims, some related to corporate negligence, faulty products and failure to comply with regulations
• Oxbryta lawsuits claiming that the medical drug’s maker withheld information about the risks of using it
• Truck accident lawsuits that involve plaintiffs who may have succumbed to their injuries before reaching an agreement with trucking companies and their insurers
• Wrongful imprisonment, when a person held against their will dies as a result of their confinement

The estate or loved ones of a plaintiff who dies may get a jury award or settlement in a lawsuit. From there, it may be distributed through the estate according to the decedent’s wishes and state law. Local jurisdictions may also have procedures that determine how any awards are distributed.

Like so many other aspects of a lawsuit, a lawyer can be critical to dealing with a settlement legally and effectively.

What happens when a defendant dies?

When individuals sue each other and a defendant dies, it’s possible for the plaintiff to sue the defendant's estate. If the decedent didn’t have a personal representative, the plaintiff, in some cases, can ask the court to assign one.

In some cases, it may be possible to file a lawsuit against a decedent’s estate. An attorney can help you decide what actions to take in your jurisdiction.

If a loved one is a plaintiff in a civil lawsuit and they pass away, it’s essential for survivors or designated representatives to consult the attorney handling the lawsuit. They can provide advice on continuing the lawsuit or refiling with amendments.