Keith Mack
The death of a client during an ongoing family law case can bring about a host of challenges, both personal and professional. While the emotional impact of such an event is significant, the legal process must also be navigated. In federal court, the FRCP allows for the notification of the court and subsequent dismissal of the case after 90 days, or continuation with a substituted party. State laws vary, with Illinois, for instance, requiring careful consideration of the governing statute and consultation with probate law experts. The key consideration is whether the claim survives the death of the client, and the appointment of a personal representative or administrator to act on behalf of the deceased's estate.
| Characteristics | Values |
|---|---|
| What happens to a lawsuit when the plaintiff dies | A motion for substitution may be made by any party to the lawsuit or by the decedent’s successor or representative. |
| How to notify the court | In federal court, the Federal Rules of Civil Procedure (FRCP) Rule 25(a) is used. |
| Filing deadline for motion for substitution | 90 days after the suggestion of death for the record has been filed. |
| If the motion is not made within the deadline | The court is required to dismiss the action by or against the decedent. |
| If the defendant dies | The victim may still bring a claim by following the proper steps. |
| If the plaintiff dies | Their surviving family members would have grounds for a survival action on behalf of the deceased. |
| If the plaintiff's testimony was key to the case | It may make the claim impossible to pursue successfully. |
| If the plaintiff's testimony was not key to the case | The case will proceed until a settlement or court-issued decision is reached. |
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What You'll Learn
- A motion for substitution must be made within 90 days of the death
- A representative must bring an action on behalf of the deceased
- The court decides whether the 90-day limit is strictly followed
- A pending action may be continued by the decedent's personal representative
- The case is paused until the party's estate can substitute into the case
A motion for substitution must be made within 90 days of the death
The death of a client during an ongoing litigation process can be a challenging situation to navigate. In such cases, the court must be promptly notified of this development. The specific steps to dismiss a family law case after a client's death may vary depending on the jurisdiction and the nature of the case. However, here is an overview of the general process:
Motion for Substitution
A motion for substitution refers to the legal process of continuing a pending lawsuit by replacing the deceased party with their representative or successor. This motion must be made within a specific timeframe to prevent the case from being dismissed.
90-Day Timeframe for Motion
In most jurisdictions, including federal court and Illinois, a motion for substitution must be filed within 90 days of the suggestion of death being noted in the record. This timeframe is crucial, and if it is not met, the court may dismiss the case regarding the deceased party. The 90-day period starts from the suggestion of death, which is the legal term for notifying the court of the client's passing.
Preserving the Case
To preserve the case, it is essential to act promptly. Even if a personal representative or successor for the deceased has not been named yet, it is advisable to request a substitution as soon as possible. This ensures that the case does not get automatically dismissed due to the passing of the client.
Impact on the Case
The death of a party involved in a family law case can significantly impact how the case proceeds. It may delay the litigation process and affect the claims and defenses presented. In some cases, the court may allow the case to continue, with the decedent's representative or successor stepping in to represent their interests.
Case Continuation
It is important to note that the death of a client does not necessarily mean the end of the case. In certain situations, the case may continue against the decedent's estate, and the plaintiff must act to keep the case going. The specific laws and procedures may vary depending on the state and the nature of the claims involved.
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A representative must bring an action on behalf of the deceased
When a client dies during the litigation process, the court must be informed of this development. In federal court, this is done through Federal Rules of Civil Procedure ("FRCP") Rule 25(a). Under this rule, if the claim is not extinguished by the death and a party dies, the court can order the substitution of the proper party. A motion for substitution may be made by any party to the lawsuit or by the decedent's successor or representative.
The filing deadline for this motion is 90 days after the suggestion of death is filed. If this motion is not made within this timeframe, the court will dismiss the action by or against the decedent. However, if the decedent was the plaintiff, their surviving family members would have grounds for a survival action on their behalf. If successful, they could recover compensation for losses incurred up to the plaintiff's death.
In the case of a surviving defendant, the case is dismissed, and it is over. However, if there is a surviving plaintiff, the case is more complex. While a default judgment can be obtained against a deceased defendant, there is no one to enforce the judgment against. This often requires the judgment holder to open an estate for the deceased defendant.
For causes of action that survive death, a representative for a plaintiff-decedent must bring an action on behalf of the decedent within six months after the plaintiff's death or within the limitations period that would have been applicable. Once a Petition for Probate has been filed and interested persons have been notified, only the probate court can appoint a personal representative.
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The court decides whether the 90-day limit is strictly followed
When a client dies during the litigation process, the court must be notified of this development. In federal court, the Federal Rules of Civil Procedure (FRCP) Rule 25(a) gives the court the discretion to order the substitution of the proper party if the claim is not extinguished.
In the case of Illinois courts, the law differs from federal law. If a motion to substitute is not filed within 90 days after the death is suggested of record, the court may dismiss the action as to the deceased party. However, the discretionary language indicates that it is up to the court's determination to decide whether the 90-day limit would be strictly followed or not, depending on the specifics of the case.
The Illinois statute 735 ILCS 5/2-1008(b) addresses the substitution of parties and includes probate law language. The court must be informed of the party's passing through a "suggestion of death of record." If no petition for letters of office for the decedent's estate has been filed, the court may appoint a special representative for the deceased to prosecute the action.
In summary, while there is a 90-day limit for filing a motion to substitute in Illinois courts, the court has the discretion to decide whether to strictly adhere to this timeframe or not, depending on the specific circumstances of the case. It is important to carefully review the governing statutes and consult with a colleague familiar with probate law to ensure a comprehensive understanding of the applicable laws and procedures.
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![California Probate Code [2025 Edition]](https://m.media-amazon.com/images/I/51i2yMhJOZL._AC_UL320_.jpg)
A pending action may be continued by the decedent's personal representative
When a client dies during the litigation process, the court must be informed of this development. The next step is to determine whether the claim survives death. If the claim is not extinguished and a party dies, the court may order the substitution of the proper party. A motion for substitution may be made by any party to the lawsuit or by the decedent's successor or representative.
In federal court, the FRCP makes it fairly easy to notify the court and either end the lawsuit after 90 days or continue it. In Illinois, if a motion to substitute is not filed within 90 days of the death being noted, the court may dismiss the action as to the deceased party. In Indiana, the personal injury lawyers at Truitt Law Offices have stated that it is still possible to seek compensation from the deceased's estate. However, this will involve a few more steps, including waiting for the probate process to be completed.
In California, the Code of Civil Procedure provides that a pending action does not end due to the death of a party if the cause of action survives. A pending action may be continued by the decedent's personal representative or, if none, by the decedent's successor in interest. This representative must bring an action on behalf of the decedent within six months of their death or within the limitations period that would have applied if the plaintiff had not died.
Ultimately, the death of a party will likely delay litigation and may significantly affect how the case proceeds. However, with enough attention and effort, the case will often continue until a settlement or court-issued decision is reached.
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The case is paused until the party's estate can substitute into the case
When a client dies during the litigation process, the court must be notified of this development. In federal court, this is done through Federal Rules of Civil Procedure ("FRCP") Rule 25(a). Under this rule, if the claim is "not extinguished and a party dies," the court has the discretion to order the substitution of the proper party.
A motion for substitution may be made by any party to the lawsuit or by the decedent's successor or representative. The filing deadline for this motion is 90 days after the suggestion of death is filed. If this motion is not made within this timeframe, the court is required to dismiss the action by or against the decedent.
The case is then paused until the party's estate can substitute into the case. Once an estate is substituted in for the deceased party, the estate (through the personal representative or administrator) can continue the case just as if the party were still alive.
The death of a party can have a significant impact on the case. If that party's testimony was key to the claims or defenses of the case, and that testimony was not preserved through deposition prior to their passing, it may make the claim or defense impossible to pursue successfully. It can also result in significantly reduced economic damages.
Therefore, many lawyers will take proactive steps to assure that the testimony will be available if a party is ill or very elderly. They may video tape the full testimony, making sure a judge and jury can see the personality of the party fully. They may also alter the estate plan or the appointed trustee to allow for an effective and prompt transition to the surviving heirs to proceed with the case.
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Frequently asked questions
If the plaintiff dies, the case is put on pause until the plaintiff's estate can substitute into the case. A motion for substitution may be made by any party to the lawsuit or by the decedent’s successor or representative. The filing deadline is 90 days after the suggestion of death for the record has been filed. If this motion is not made within this timeframe, the court is required to dismiss the action by or against the decedent.
If the defendant dies, the case may continue. The plaintiff must act to keep the case going by making a timely motion to substitute the person’s personal representative as the defendant.
If the defendant's testimony was key to the claims or defenses of the case, and that testimony was not preserved before their death, it may make the claim or defense impossible to pursue successfully.
If the plaintiff dies as a direct result of the defendant’s negligence or wrongful conduct, the plaintiff’s surviving loved ones may have grounds for both a survival action and a wrongful death lawsuit.
