What Happens to a Civil Lawsuit if the Plaintiff Dies During Litigation?
If a party to a civil lawsuit passes away, the court will typically put the lawsuit on hold, instead of terminating it. This is done temporarily and with the purpose of giving the probate court time to appoint a personal representative for the estate of the deceased party. Through the personal representative, the heir or heirs of the deceased can continue the lawsuit. The personal representative is the one who will act for the deceased in the administration of the estate of the deceased as well as in any pending lawsuits that the deceased is a party to. The personal representative will also represent the deceased in lawsuits that may arise against the estate of the deceased in the future.
Criminal cases constitute an exception to this, as they terminate upon the death of a party.
What Happens to a Civil Lawsuit if the Defendant Dies During Litigation?
Similar to the situation, in which the plaintiff dies, in this case the cause of action remains unchanged, governed by section 46.021 of the Florida Statutes. The plaintiff can continue the lawsuit against the deceased defendant’s estate.
The main difference is that the plaintiff can no longer claim punitive damages, as the purpose of punitive damage is to “punish” the defendant. Since the defendant is no longer alive, there would be no purpose in this punishment. But apart from punitive damages, all the same causes of action and types of damages remain available for the plaintiff to pursue.
What Law Governs the Death of a Party in a Civil Case in Florida?
In Florida, section 46.021 governs the survival of actions in case of the death of a party to a lawsuit. It states: “No cause of action dies with the person. All causes of action survive and may be commenced, prosecuted, and defended in the name of the person prescribed by law.”
However, in order to make sure that the case of a deceased party is not dismissed, it is nonetheless crucial to comply with local Civil Procedure rules. Typically, the estate has 90 days to file a motion for substitution. This motion would substitute the deceased with the personal representative of the decedent’s estate before the court that is hearing the pending case.
There are a number of additional civil procedure rules that the parties will have to follow, and it is important to have an attorney ensure compliance with those rules.
