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Posted On May 31, 2022 Personal Injury

What Happens to a Lawsuit When the Defendant Dies? 

Resolving a personal injury lawsuit can take years, and in some instances, like motor vehicle collisions, the defendant may have suffered physical harm, too. It’s possible that the person you’re suing in an injury claim could pass away before the case settles or goes to trial—leaving you wondering what will happen to your case.

Generally, the defendant in a personal injury lawsuit dying doesn’t eliminate the plaintiff’s opportunity to pursue compensation through a lawsuit. However, depending on state law, additional legal requirements may apply.

Substitute Defendant

What Is a Defendant and How Do They Fit Into a Personal Injury Lawsuit?

In a civil lawsuit, the defendant is the person who is being sued—the person (or one of the people or parties) named in the lawsuit. The person who is suing is called the plaintiff.

Both sides generally have their own legal team. On the plaintiff’s side are their attorneys, who are pursuing compensation for the plaintiff’s injuries. The defense includes the defendant’s insurance company and defense attorneys appointed by the insurance company.

Defendants in personal injury lawsuits are the parties alleged to be at fault for an accident, such as motorists, property owners, businesses using commercial property and their employees, and medical professionals alleged to have committed malpractice.

What Do You Need to Do Differently in a Lawsuit in Which the Defendant Is Deceased?

If the defendant is no longer alive, you may have to go through a legal process to substitute the deceased defendant’s estate or personal representative.

If there is not already an estate established or a personal representative appointed, this development may delay your claim as the defendant’s estate is sorted out. It’s important that your attorney keeps on top of any legal deadlines that may come into play, either as they pertain to your original legal action (the statute of limitations for an accident claim) or to the time limits to substitute the estate or personal representative as the named defendant. The death of the defendant may not stop or pause the statutes of limitations that apply to your legal matter, even if it does hold up the progress of your case. Missing any relevant statute of limitations may stop your case from proceeding at all.

Depending on state law, certain aspects of your claim—like your ability to pursue punitive damages—may be affected.

Can You Sue a Deceased Defendant?

In some cases, the person who caused the accident is already dead before a lawsuit is filed. This situation most commonly applies to motor vehicle collisions in which the crash that killed the at-fault driver also harmed others.

It doesn’t matter that the other driver’s deadly injuries were more serious than the nonfatal injuries they caused to someone else. The injuries you sustained still caused you significant physical harm and financial losses, and the negligence of the at-fault party still caused the accident.

What does matter, in the situation in which the defendant dies, is whether all necessary actions are taken by the legal deadlines that apply. Filing the lawsuit against the already-deceased party may not accomplish anything, since it may be the personal representative of the estate who must be named in the lawsuit.

All relevant deadlines must be met. Different statutes of limitations apply to different situations, and the deadline to substitute an estate’s personal representative for the deceased defendant may be shorter than the typical deadline to file a personal injury claim. Additionally, legal deadlines vary by state. It’s essential, in a case that is made more complicated by the involvement of a deceased defendant, to retain a lawyer who is knowledgeable about all relevant laws in the state in which the claim is filed.

What If the Defendant Dies After the Case Is Filed?

If the case has already been filed, naming the deceased as the defendant prior to that individual’s death, the question becomes what happens to the existing case. As long as the cause of action is still valid, the plaintiff can usually proceed with the case. However, doing so will likely require the plaintiff to go through the procedures to substitute the personal representative of the estate of the deceased in place of the original defendant.

Who Pays Lawsuit Settlements When the Defendant Is Already Dead?

Even if you can move forward with your case, how can you collect a settlement from a deceased defendant?

Even when the defendant is still living, most personal injury lawsuit settlements are paid by insurance companies, not individuals. Even if their policyholder (the defendant) is no longer alive, their insurance company is legally required to cover the damage caused by the policyholder (before their death) in a covered event.

Even though an insurance company will be responsible for paying the settlement, the policyholder still has to be named as the defendant in the personal injury lawsuit. The defendant’s death complicates this requirement, because—again—the appropriate party (like the personal representative of the deceased’s estate) must be the named defendant.

Do You Need an Attorney for a Lawsuit Against a Deceased Defendant?

The death of the defendant doesn’t automatically mean the end of your claim, but it does complicate matters. If you didn’t already have an attorney representing you, it’s critical that you retain one as soon as possible if you fear that there is a chance that the defendant could pass away before the case resolves. Even if your defendant isn’t gravely ill or injured, it’s always a good idea to have a knowledgeable attorney on your side who can handle whatever circumstances arise.

The possibility of the defendant dying before your lawsuit ends isn’t the only reason or even the main reason to hire professional legal representation. More commonly, personal injury plaintiffs hire a lawyer to get them more money and make the legal process easier for them. However, this situation is one more complication that, if not managed correctly by an experienced attorney, could significantly affect your claim.

Understanding the complexity of lawsuits against a deceased defendant is essential for the outcome of your case. Contact one of our experienced personal injury lawyers today at Console & Associates Accident Injury Lawyers, P.C. for a free consultation. We have law offices in Marlton, Newark, and Philadelphia and are ready to help you proceed with your case with our No Win No Fee promise.


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