When Plaintiffs Or Defendants Die During Litigation
Death Of A Client Or Defendant In Litigation:
When Your Client Passes Away: You have fought hard for your client to receive justice for the injuries that they sustained. But unfortunately, they pass away during the pre-suit process or during litigation. The Florida Rules appear clear on this issue – when your client passes away, you no longer have a client. Thus, if you intend to continue with the case (sometimes you may not want to continue due to the lack of future medical damages), you will need to be hired by the court-appointed personal representative of your former client’s estate.
If you are in a suit, you must also be aware of the need to substitute the party plaintiff as well (JANE DOE [insert name of court-appointed personal representative], as personal representative of the estate of JOHN DOE [insert name of former client]). Be aware that there are time constraints related to substitution (See Florida Rule of Civil Procedure Rule 1.260) if a suggestion of death is filed on the record.
When a Defendant or Purported Defendant Dies: You have fought hard for justice, but the defendant unfortunately dies before you file suit or while you are in suit. Your case is now at a standstill unless the opposing party and your client reach a settlement. What do you do? It depends.
Pre-Suit: If you are going to file suit against a deceased Defendant, lots of considerations come into play. Ideally, the family has opened a probate estate and a personal representative has been appointed for you to name in the suit and serve. However, there are other considerations. How long has it been since the decedent died (if it has been over 2 years, you cannot make a claim against the decedent’s assets)? Can you timely file suit and serve the personal representative before they are discharged?
If a probate case has not been opened, then you will need to force the issue, as your client is a creditor of the estate (they can arguably still open the estate regardless of whether it has been 2 years since the decedent’s death if you are only making a claim for casualty insurance coverage). A further discussion of opening an estate as a creditor is below.
In Suit: If you are in a suit and the defendant dies, timing is important. You will need to substitute the party defendant for the estate (JANE DOE [insert name of court-appointed personal representative], as personal representative of the estate of JOHN DOE [insert name of deceased Defendant]). As mentioned above, be aware of time constraints related to substitution of parties (See Florida Rule of Civil Procedure Rule 1.260) if a suggestion of death is filed on the record.
Ideally, the family opens a probate estate and a personal representative is appointed for you to substitute. If not, you will need to force the issue, as your client is a creditor of the defendant’s estate. A further discussion of opening an estate as a creditor is discussed below.
Opening the Estate of a Deceased Defendant: In order for any party to bring a probate action, they must have the standing to do so. In a probate case, you must be an interested party to the probate estate to have standing. Creditors of an estate are interested parties to a probate action, so long as they still have the statutory authority to file a creditor claim (see Florida statutes and case law regarding the two-year limit on creditor claims against the estate – from the date of death of the Decedent). Notably, the two-year limit does not apply if you are seeking recovery only from casualty insurance coverage and not estate assets.
Now that your client has a standing as a creditor of the deceased defendant’s estate, you can move forward to open the estate and have someone appointed as the personal representative. Experienced probate counsel can guide you in opening the estate, but it usually involves a diligent effort to locate all beneficiaries of the estate and a determination if any beneficiaries want to serve as personal representative. If you cannot determine who the beneficiaries are, or if the beneficiaries refuse to serve as personal representative, you will need to obtain the appointment of an independent professional personal representative (usually another attorney) to serve as personal representative (or curator of the estate, if the situation necessitates).
Once your personal representative is appointed (or your curator with powers to accept service of your suit and defend the action), you may substitute and/or serve the lawsuit on the estate.
If you have questions or inquiries, call today to speak with one of our attorneys about your specific case needs! 904-527-1700
For information about Matthew H. Hinson, Esq.’s CLE entitled “Probate for the Personal Injury Practitioner” see the link below or contact Mr. Hinson at The Hinson Law Firm, P.A.
Mr. Hinson has presented on this topic in a CLE to various plaintiff’s attorney organizations. Read more about it by clicking on the following link: Continuing Legal Education Class – Probate for the Personal Injury Practitioner