September 22, 2015

Dawn of the Litigating Dead: Litigation After A Litigant Dies

Holland & Knight Private Wealth Services Blog
Stacie Polashuk Nelson | Lydia Lee Lockett

When a party1 to a civil action dies before commencement of an action or during litigation, California litigators are often left to navigate unfamiliar waters in dealing with the particularized procedures and timeframes that are triggered by the litigant’s death. The following is a synopsis of the issues that arise if a litigant dies before or during litigation.

As a preliminary matter, it must be noted that the statutory schemes set forth in the California Probate Code and the Code of Civil Procedure do not and cannot anticipate every possible scenario. As a result, uncertainty can exist regarding how to proceed after a party has died. The safest practice is to follow and enforce compliance with all of the applicable procedures in both codes, even if it may appear a particular procedure is unwarranted or duplicative.2  This can both safeguard the interests of the estate and sometimes create a procedural bar to a plaintiff proceeding against the estate.

Initial Considerations

The first step in analyzing how to proceed with an action when a party dies begins with determining if the claim survives death. Generally, most claims for or against a party survive the death of that party.3 Despite the Legislature broadening the claims that survive death, there are still claims that die with the decedent, and the most common of these are punitive damages claims against a decedent,4 and pain and suffering damages,5 including emotional distress damages,6 claimed by the decedent. 

If the claim survives, counsel must then ascertain: (1) the procedural steps required to initiate or continue the action if the claim belongs to the decedent; (2) the procedural steps a plaintiff must undertake to continue or initiate litigation against a decedent’s estate (such as by whom or against whom the action can or must proceed); and (3) the applicable statutes of limitations and other deadlines that must be followed. 

Procedures For Litigating Claims Against A Deceased Defendant

Four major issues exist related to process : 1) ensuring the proper parties are named or substituted in to the action; 2) compliance with the Probate Code’s creditor’s claims filing requirements;7 3) compliance with the Code of Civil Procedure special statutes of limitations8 for bringing suit against a deceased litigant (generally a firm one year time bar from date of death); and 4) determining if the claim is covered by insurance and the procedures involved to pursue the coverage.  Moreover, Californians often die with their assets in trust leaving little to no estate.  In trying to recover on a Decedent’s debt from his/her trust, the process is uncertain in California, unless a probate has been opened or the trustee initiates a formal trust claim procedure. 9

Continuing Or Initiating Lawsuits On Behalf Of Decedent’s Estates

If a plaintiff dies before or during litigation, certain procedures must be again followed. Either the personal representative of the decedent’s estate or the decedent’s successor in interest (if there is no personal representative) 10 may pursue the litigation on behalf of the decedent and/or seek to be substituted into the proceeding.  Further, the personal representative or successor in interest must adhere to the statute of limitations that come into play on death of the plaintiff.  The action must be commenced before the later of six months after the decedent’s death or within the limitations period that would have been applicable had the person not died.11


The story of the untimely demise of litigants or potential litigants has a clear moral: if a case has been “litigated to death” (or was about to be filed when one of the parties died), specific procedural actions must be taken quickly. Under these circumstances, the probate court does not provide litigants with the luxury of time.  For a probate lawyer, this can afford fertile ground for strategy and planning to protect the estate. For civil lawyers, consultation with probate lawyers who are familiar with these procedures is absolutely critical.

Please note: This article was originally published in California Lawyer, then published in California Trusts and Estates Quarterly, Vol. 20, Issue 3.
Read the full article.


1 References in this article to “party” and “litigant” include prospective or potential litigants.

2 The statutory scheme governing litigation against a decedent is based on the plaintiff taking action in a probate estate.  However, a probate may not be necessary to dispose of the decedent’s assets.  For instance, where a trust will likely be the true source of recovery, it might seem unnecessary for a plaintiff to sue a probate estate (or open a probate for the sole purpose of filing a creditor’s claim). 

4 Code Civ. Proc., section 377.42See generally Code Civ. Proc., sections 377.40 et seq. for statutes governing surviving causes of action against a decedent.

5Code Civ. Proc., section 377.34See generally Code Civ. Proc., sections 377.30 et seq. for statutes governing surviving causes of action on behalf of a decedent.

6 Neal v. Farmers Ins. Exch. (1978) 21 Cal.3d 910, 920 n.3.

9 Prob. Code, sections 19003, 19008, 19010; Wagner v. Wagner (2008) 162 Cal.App.4th 249, 255 (noting a trustee is not required to utilize the statutory formal claims procedure and may proceed informally in administering a decedent’s trust.).

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