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Justice On Your Side. Serving Savannah, Augusta, Atlanta and Beyond.

What If The Defendant Dies In Litigation?

Lawsuits can often take years of back and forth between parties. They are also incredibly stressful for everyone involved. Those involved in pending litigation look forward to the case being finally completed, but what if the defendant dies? While not incredibly common, situations like this do happen and could further complicate case proceedings. When situations like this occur, what happens to the case?


What Happens Immediately After a Defendant Dies

When the defendant dies in the middle of a case, the course of the case may change in unforeseen ways. There are many aspects of the case that will need to be considered or reconsidered after the defendant’s passing. One of the most important considerations is if the claim can still survive after the passing of one key party involved. 

Typically, the plaintiff cannot pursue any claim involving punitive damages against a defendant after the defendant has passed away. Punitive damages include any behavior that the defendant displayed that caused harm to the plaintiff. Other accusations of pain and suffering and emotional distress are likely to be excused or omitted from the case once the defendant dies. There may be some situations in which these claims have a possibility of surviving; however, for the most part, it is hard to pursue after the defendant has died. 

If wrong has been done to the plaintiff, a claim will typically survive the defendant dying as the plaintiff has a right to receive compensation for their injuries. Instead of filing their case against the defendant, the claim will be positioned instead against the defendant’s estate. After the case has been reestablished against the defendant’s estate instead of the defendant, the case should be able to proceed. Some cases that typically survive the defendant’s death include but are not limited to:

  • Fraud
  • Abuse claims
  • Some civil rights claims
  • Creditor’s claims
  • Spousal or child support, fees, and rights 

It is important to refile the case against the defendant’s estate as soon as possible. After the death of a defendant, there is a short time frame for when the case must be refiled against their estate; otherwise, the plaintiff will waive their right to pursue legal action against them. Most states will give the plaintiff one year to refile their case. It is necessary to check your state’s time frame to ensure you comply with it. 

How to Proceed With Your Case

If you are able to proceed with your case after the death of the defendant, your case may need to undergo some changes. Most of your original case may be able to be reused; however, the following changes are likely needed before you can refile your case:

  • Ensuring proper parties are named- In filing your case the first time, you likely have the defendant’s name in your claim. After the defendant has died, they will no longer be a part of the lawsuit, and you will have to replace them with their estate name. 
  • You must comply with the Probate Code’s requirements- Each state has a unique take on the requirements that creditors can claim or file. An attorney can help you navigate this portion of your refile. If you choose to do this section without the help of a lawyer, familiarizing yourself with your state’s unique codes is necessary. 
  • You must comply with the Code of Civil Procedure’s statute of limitations- As previously stated, you must act in a certain time frame or statute of limitations to refile your case. You must make sure that you are aware of your state’s laws so that you remain within that time frame. 
  • Make sure that insurance will cover your claim- When you filed your case originally, your insurance was likely in your favor. When re-filing, you will need to speak to your insurance provider again and notify them of the situation and your intent to refile. After giving them all the necessary and up-to-date information, they will be able to make a clear decision regarding their involvement in your case. 

The process of re-filing your case is full of many complexities. An average person may not have the time to put their life on pause in order to give their case all of their attention. Many people going through cases like this may opt for hiring an experienced attorney to help them so that they can approach the re-filing of their case stress-free and confident. There are a number of attorneys who are eligible to assist you in your refile, and it would be best to choose one that is knowledgeable on the content or topic of your original case so that they can better serve you. 

How An Attorney Can Help

The process of re-filing a case against a deceased defendant is incredibly difficult for the average person to navigate. Some processes and procedures are too complex for those unfamiliar with the law to grasp, or there is an obscene amount of work that a normal person may struggle to get through on their own. Hiring an attorney to handle this work for you can greatly decrease the stress you may feel re-filing your case. 

Additionally, an experienced attorney can help pass and process motions, collect evidence and present your evidence with skill, and argue critically on your behalf. It is important to find an attorney who specializes in your case’s specialty. For example, if you have a personal injury case, you may want to consider hiring a personal injury attorney. Hiring an attorney is the best way to go about your pending litigation because they have the experience necessary to understand what is needed and perform optimally. 

Contact Us

If you are in the middle of a case where the defendant has died and you need legal help moving forward with your claim, contact the experts at The Eichholz Law Firm. Our experienced lawyers will assist you in moving forward with your case to receive the compensation you deserve. You can call us at 855-551-1019 or contact us by filling out our case evaluation form. We look forward to seeing how we can help you.

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