deceased plantiffIf you filed a civil suit and you die before the case was settled what  happens to the case and is your spouse entitled to your settlement ?            

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litteacher8's profile pic

litteacher8 | High School Teacher | (Level 3) Distinguished Educator

Posted on

Wow! This debate got spicy. In the event that a lawsuit is filed and the plaintiff dies, in many cases the case lives on. It really depends on the individual circumstances, including the type of lawsuit and the way the case was drawn up by the lawyers, and when in the process the plaintiff dies.
larrygates's profile pic

larrygates | College Teacher | (Level 1) Educator Emeritus

Posted on

In my previous post, I stated that "each state has a survivorship statute which provides which type of action will survive." That obviously covers the Pennsylvania statute which Rienzi took pains to point out. "A few other states" certainly isn't the "most" states in which I indicated that causes of action for libel and slander do not survive. Since you are so proud of your "research," why didn't you cite those states also. You obviously know more than I learned in twenty years practicing law. And I beg to differ: it is most certainly NOT a question of probate. All estates with significant value must be probated. The question is, does the cause of action continue. If so, it becomes a part of the estate; in fact "in most states" to use my favorite phrase once more probate must be established before the personal representative is allowed to continue the action. If that's pontificating, I will gladly wear it. I would be interested in knowing how much professional training you have had on the subject. As much as I enjoy working on this site, it certainly has its share of "ten cent millionaires."

larrygates's profile pic

larrygates | College Teacher | (Level 1) Educator Emeritus

Posted on

With all due respect to the above posters who obviously are not trained in the law; each state has a "survivorship" statute, which provides which type causes of action will survive. In almost every jurisdiction, causes of action for personal injury or breach of contract will survive. Quite often, contracts, lease agreements, etc. contain a provision that the contract will be binding upon and inure to the benefit of the parties, their heirs, etc. A cause of action for debt would also survive. It would be necessary for any continuation of the action to be brought by the duly apponted representative of the estate. Typically, causes of action for libel and slander do NOT survive. The injuries for this type tort simply do not carry over to one's estate; therefore the cause of action dies with one, even if the case is in litigation.

rienzi's profile pic

rienzi | (Level 1) Valedictorian

Posted on

Ordinarily the executor or the administrator for the estate substitutes for the deceased. The estate would then control the proceeds of the settlement. If a spouse is an heir then distribution would be made accordingly.

rienzi's profile pic

rienzi | (Level 1) Valedictorian

Posted on

You say: "Typically, causes of action for libel and slander do NOT survive."

You have evaded this issue and provided no support or specifics. I simply provided one state where that's not the case. Neither is it the case in VA, CT, MA, VT, SD, or GA to name a few. You were perfunctory in your zeal to attack me rather than answer the original question.

Yes, there are exceptions to the survival of actions. Divorce is probably the biggest universal exception not libel or slander. In the law there are always exceptions and exceptions on exceptions and so on.

But, more to the point, you failed to challenge either of my responses at #2 or #4. Rather, you chose to attack me through an obscure legal point the sole purpose of which was to mark your territory.

rienzi's profile pic

rienzi | (Level 1) Valedictorian

Posted on

Not in Pennsylvania: § 8302- Survival action

  • All causes of action or proceedings, real or personal, shall survive the death of the plaintiff or of the defendant, or the death of one or more joint plaintiffs or defendants.

And not in a few other states I checked. So please include citatations before pontificating. Not that it matters anyway. The question is one of probate not abatement. So if by chance Plaintiff passes away and the matter has not settled, the estate must still be probated. If the cause of action abates then it abates.

rienzi's profile pic

rienzi | (Level 1) Valedictorian

Posted on

Go to the county register of wills with a death certificate and a will (if there is one) and open an estate. The individual is then sworn in as executor or administrator and given the paperwork necessary to carry out the duties.

laurenmcall's profile pic

laurenmcall | eNotes Newbie

Posted on

Ordinarily the executor or the administrator for the estate substitutes for the deceased. The estate would then control the proceeds of the settlement. If a spouse is an heir then distribution would be made accordingly.

Do you have to have some kind of legal papers if your the spouse in order to be executor or administrator for the estate ?

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