What Happens if Someone Passes Away in the Middle of Their Lawsuit?

Sometimes, a person who has been injured in an accident lives for quite some time -- enough time to file a lawsuit -- but they finally succumb to their injuries and pass away while their lawsuit is still pending.  Unfortunately, in medical malpractice cases and catastrophic injury cases, this happens quite often. So what happens to the lawsuit if the plaintiff dies while the case is still pending?


In the old days, the lawsuit died when the plaintiff died.  However, modern law allows the family members to keep the case going even after their loved one has passed away.  The law is known as the “survivor statute” -- meaning that a person’s lawsuit “survives” his or her death.


Technically, when the plaintiff dies while the case is still pending, the lawsuit will be “owned” by the plaintiff’s estate.  Thus, the lawsuit will be considered an asset of the estate, just like any other asset of the estate (such as a bank account or a home).  That asset (the lawsuit) can be turned into money when the case settles or when the case is won in court. At that point, the client’s share of the proceeds from the case will be distributed to the heirs just like any other asset in the estate.  


What Steps Need to be Taken to Keep the Lawsuit Going?


In order to keep the case alive, there are some legal procedures that have to occur.  In essence, someone has to be appointed to be in charge of the estate. Again, since the lawsuit is considered to be part of the estate, the person who is in charge of the estate is also in charge of the lawsuit when the plaintiff dies while the case is still pending.  In this regard, is it much easier (and less expensive) if the plaintiff has a will that names an administrator of the estate who is given authority to control the assets and distribute the proceeds to the heirs in the will. If the plaintiff had such a will, then it will be probated and the court will issue a letter that authorizes the designated person (usually a close family member) to manage the estate.  This letter from the court gives the designated administrator of the estate authority to make all kinds of decisions about the assets of the estate, including decisions about the case, including settlement decisions. Usually, these estate administrators of the estate can operate independently, without court supervision.


What if a Will Does Not Exist?


However, if the plaintiff is unfortunate enough not to have a will when he or she dies, then the situation becomes more complicated.  Because there is no will, the probate court has to do a lot more work to determine who the legal heirs are. When this work is done, someone will be appointed by the court to manage the estate and the case.  However, when there is no will, the court will be much more involved in supervising the activities of the estate. For example, the law firm who was handling the case before the plaintiff died will need to get the court’s blessing to continue representing the estate.  Moreover, the court will have to approve any settlement of the case before final documents can be signed. Although it takes more time, work and money to get all the probate matters resolved when there is no will, if the plaintiff had a good case before death, it will be worth it to go through this process so the case can proceed.


Is There Anything Else That Can Be Done? 


The bottom line is this: if the plaintiff dies before the case is over, then once the administrator of the estate is properly appointed, he or she can continue to push the case towards settlement or trial.  If there are any proceeds from the case, the client’s share will go to the heirs of the estate.


In addition to the plaintiff’s survival action, there also might be a wrongful death case that close family members can bring on their own behalf.  A wrongful death case is intended to compensate the family members for the loss of companionship and financial support that the family members suffered as a result of losing their loved one.  In contrast, a survival action is intended to provide compensation to the estate for the pain, suffering and medical expenses sustained by the plaintiff while he or she was alive. A wrongful death case is not owned by the estate, but is owned by the family members (parents, spouses and children) who lost their loved one as a result of someone else's carelessness.  Thus, the family members can bring a wrongful death case without going through any probate proceedings.


Although a wrongful death case and a survival case are different cases, when they arise out of the same tragic incident (which they typically do) then they will be brought together in the same lawsuit and will be submitted together to the same jury.