What Happens When a Party Dies During a California Lawsuit?

A lawsuit can outlive the person who filed it. What changes is who controls it, and how fast the next deadlines arrive.

A lawsuit may last months or even years. During that time, one of the parties may unexpectedly pass away. The first reaction is usually the same question: what happens to the lawsuit now?

Does the case automatically end. Can the family continue it. What if the person who died was the defendant. What if they had claims they were planning to bring but never filed. And does probate now become part of the litigation.

In California, the answer is usually not that the lawsuit simply disappears. The death creates a transition period in which several important questions have to be answered quickly.

Does the Lawsuit End When Someone Dies?

Usually, no.

Code of Civil Procedure section 377.20 generally provides that a cause of action does not disappear simply because a person dies. Section 377.21 similarly provides that a pending proceeding does not abate when a party dies if the underlying cause of action survives.

Put more simply: death and dismissal are not the same thing.

Imagine a plaintiff who has been pursuing a breach-of-contract case for two years and dies shortly before trial. The defendant does not ordinarily get an automatic victory because the plaintiff passed away. Likewise, if someone is being sued and dies while the case is pending, the plaintiff's claim does not necessarily vanish.

There is an important qualification. The particular claims and remedies have to be examined individually. Some claims survive. Some are personal and may not. Certain categories of damages may change after death. Probate procedures may also become necessary.

So the correct question is not simply whether the person died. It is closer to this: what claims existed when the person died, which of those claims survive, and who is legally authorized to continue dealing with them.

Who Takes Over the Lawsuit?

This is often the most important practical issue.

After someone dies, family members naturally begin communicating with the deceased person's attorney. A spouse, son, daughter, trustee, or beneficiary may say, "Please continue the lawsuit."

That request is understandable. It does not necessarily mean that person has legal authority to control the litigation. The lawyer has to determine who actually holds that authority.

The personal representative

If a probate estate has been opened, an executor or administrator may be appointed as the deceased person's personal representative. That appointment matters.

Being named as executor in someone's will is generally not, by itself, the same as having been formally appointed and authorized to act. Under Probate Code section 8400, the powers of a personal representative generally depend on the appointment becoming effective and on the issuance of letters, subject to limited powers a nominated executor may have to preserve estate property.

For litigation purposes, counsel should determine:

• Has a probate proceeding been opened?
• Has an executor or administrator actually been appointed?
• Have letters been issued?
• Are there limitations on that person's authority?

The answers can determine who may properly step into the lawsuit.

What if there is no personal representative?

California law also recognizes a successor in interest in appropriate circumstances.

Under Code of Civil Procedure sections 377.30 and 377.31, a surviving cause of action belonging to a deceased person may generally be commenced or continued by the personal representative or, if there is no personal representative, by the deceased person's successor in interest.

That does not mean any relative can declare themselves the successor. Section 377.32 contains specific requirements for establishing successor-in-interest status, including a declaration containing specified information and generally a certified copy of the death certificate.

This is why the first few days after learning of a litigant's death can involve as much investigation as litigation.

What about a trustee?

A common misunderstanding is that if the deceased person had a trust, the trustee automatically takes over everything.

Not necessarily.

A trustee generally has authority concerning the trust and trust property. Probate Code section 16249, for example, gives trustees authority to prosecute or defend actions to protect trust property and carry out trust duties.

But a claim personally belonging to the deceased person does not automatically become a trust claim merely because a trust exists. Counsel may need to determine whether the claim belongs to the trust, the probate estate, a successor in interest, or another legally authorized person. That distinction can change the next procedural step entirely.

If the Plaintiff Dies During the Case

Suppose John files a lawsuit for breach of contract. The case is actively litigated. Depositions have been taken, discovery is underway, and trial is approaching.

Then John dies.

The lawsuit does not necessarily end. But John's attorney generally cannot keep litigating indefinitely as though John were still alive.

For a surviving claim, Code of Civil Procedure section 377.31 provides a procedure for continuing the pending action through the appropriate personal representative or successor in interest. The court will typically need to know who is now legally entitled to prosecute John's claims. If a successor in interest is seeking to continue the action, the requirements of section 377.32 become particularly important.

The key point for families is simple. Being the closest family member and being the person legally authorized to continue the lawsuit are not necessarily the same thing. That issue should be resolved before major litigation decisions are made.

If the Defendant Dies, There Is an Additional Trap

The situation can become more complicated when the person who dies was the defendant.

Suppose Mary sues Robert. While the lawsuit is pending, Robert dies. Mary may think the lawsuit was already filed, so Robert's estate simply replaces him and the case keeps going.

That assumption can be dangerous.

California's probate creditor-claim rules may become relevant even though the lawsuit was filed before Robert's death. Code of Civil Procedure sections 377.40 and 377.41 address surviving claims against a deceased person and continuation against the proper representative. Probate Code section 9370 adds an important requirement for certain lawsuits already pending against a person at the time of death.

Generally, a plaintiff seeking recovery against the deceased defendant's estate must comply with the applicable probate creditor-claim procedure before continuing against the personal representative. After the probate claim is rejected, another deadline may arise. Where the rejection notice contains the statutorily required warning, Probate Code section 9370 generally requires an application for substitution within three months after the rejection notice.

One of the most important lessons follows from that. "We already filed the lawsuit" does not necessarily mean probate deadlines can be ignored.

Death Can Create Several Deadlines at Once

There is no single California rule saying that when someone dies you have X days to substitute. Different deadlines apply to different situations. Depending on the circumstances:

These rules should not be mixed together. Three months and 90 days are not necessarily the same deadline. The federal 90-day substitution rule should not be imported into a California state-court case.

This is one reason the death of a party should trigger an immediate deadline audit.

What Comes Next

The death of a party does not necessarily end a California lawsuit. It changes who has authority to continue the case, what procedures must be followed, and which deadlines suddenly matter.

Determining whether the lawsuit survives and who can step into the case is only the beginning. Part 2 of this series focuses on what happens after a client's death, in particular what the deceased client's attorney should do and what steps should come next.

The takeaway from Part 1 is simple. When a party dies during active litigation, neither the family nor the attorneys should assume the case is over, or that it can continue as though nothing happened. The claims, the proper representative, the court proceedings, and any applicable probate deadlines should all be evaluated.

At Sari Law Firm, we assist clients with complex California litigation and the procedural issues that arise when unexpected events affect an ongoing case. If a party in your case has died, contact us to review the claims, the authority question, and the deadlines now running.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Every case is different. If you believe your rights have been violated, consult a qualified California attorney to evaluate your specific situation.