This is an excellent question! The first thing to do is to determine whether the claim survives death. This means that there are certain types of claims that are automatically dismissed when the defendant dies. The most common types of cases that are dismissed are the ones seeking punitive damages, as well as pain and suffering damages. The logic behind this is that, if the defendant has passed away, there is no future misconduct to prevent or individual punishment to inflict.

If the basis for the case remains because the cause of action survives, then the lawsuit continues to be litigated. In this situation, the lawyer of the plaintiff must follow the correct legal procedures in order to ensure that the claim is now against the administrator of the defendant’s estate.

Estate and probate codes, often collectively called “Inheritance Laws”, vary from state to state. This means each state has its own statutes of limitations concerning the litigation of a case wherein the defendant has died. For example, the lawyer of the plaintiff will have to file a motion to allow a pending action to proceed against the personal representative of the deceased. The deceased’s personal representative and the administrator of the estate must have sufficient notice of the motion, as well as any “creditor’s claim” that the plaintiff should file after the death of the defendant. Otherwise, the case will prevent the plaintiff from recovery against the estate of the defendant.