What if the defendant dies while your legal case is pending?

Monday November 27, 2017

When you are injured through someone else’s negligence, there is a statute of limitations to bring a claim. Normally, you have at least two years after the accident to file a lawsuit against that person.

But what happens if the person dies before your case is resolved, or before you even file a lawsuit? In most cases, your legal claims live on even if the at-fault party does not. However, it is always advisable to talk to a lawyer soon rather than later, to preserve your right to sue and maximize your recovery of damages.

Does my injury claim end if the at-fault person passes away?

No. In a civil action, such as a person injury lawsuit, your right to compensation survives if the party you are suing dies at any point in the legal process.

If you had initiated legal action against an individual, your case would proceed against that person’s estate. Naturally, the estate administration process may delay resolution of the claims. Also, the fact that the deceased is not available for courtroom testimony or depositions can complicate legal proceedings.

If you had not yet filed a lawsuit – assuming the statute of limitations has not expired – you would commence an action naming the executor or personal representative of the estate.

It may or may not be necessary to file or follow through on a formal lawsuit. In a car accident, for example, the case usually begins with a claim against the defendant’s insurance policy. Their insurer may choose to settle the case … or opt to litigate, depending on the facts of the case and the value of the claims.

What if I die before my case is resolved?

If a plaintiff passes away while an insurance claim or lawsuit is pending, their legal claims do not evaporate. The executor/personal representative can pursue the injury claim on behalf of the estate. Any proceeds are distributed to beneficiaries named in the deceased’s will (if they had one) or to surviving heirs according to the laws of succession in that state. 

A key question is whether the person died as a direct result or complications of the accident. If that is the case, next of kin can bring a wrongful death lawsuit and/or the estate can pursue a separate survival action.

A personal injury attorney can address these hypothetical (or not so hypothetical) scenarios. If the defendant or plaintiff are in grave health, it may be prudent to file the lawsuit and preserve their testimony while they are still living.

Source: Procedures following the death of a civil defendant (Connecticut Chief State’s Attorney)

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