Can an Estate Continue a Lawsuit Started by the Deceased? (w/Examples) + FAQs

Yes, an estate can absolutely continue a lawsuit that was started by a person before they died. When a person who has filed a lawsuit (the plaintiff) passes away, their legal claim is treated like any other asset they owned, such as a house or a bank account. This asset, known as a “cause of action,” can be passed on to their estate to be managed and pursued for the benefit of their heirs and creditors.

The primary conflict arises from a strict procedural rule found in both federal and state courts, such as Federal Rule of Civil Procedure 25. This rule creates a non-negotiable deadline, often just 90 days, that begins the moment the court is formally notified of the party’s death through a document called a “Suggestion of Death.” The devastating consequence of missing this deadline is that the court must dismiss the lawsuit, permanently erasing a potentially valuable claim over a procedural technicality, regardless of how strong the case was.

This procedural trap is significant, considering that in the U.S., over 90,000 wrongful death claims are filed each year, many of which begin as personal injury lawsuits where the victim later succumbs to their injuries. The transition from a personal case to an estate’s case is a critical moment where legal rights can be unknowingly forfeited.

Here is what you will learn by reading this guide:

⚖️ The Two Lawsuits Born from One Tragedy: You will understand the crucial difference between a “Survival Action” (the deceased’s original lawsuit) and a “Wrongful Death Claim” (a new lawsuit for the family), and why knowing this difference is critical for protecting who gets the money.
🧑‍⚖️ Who Takes Charge and How: You will learn the exact steps to have a “Personal Representative” (an Executor or Administrator) legally appointed by the court, the only person with the authority to step into the deceased’s shoes and continue the lawsuit.
⏳ How to Beat the Countdown Clock: You will discover the procedural “guillotine”—the strict deadlines (like the 90-day rule) for formally substituting the estate into the lawsuit—and the precise steps required to meet them and prevent your case from being thrown out.
💰 What You Can Actually Recover: You will learn which types of legal claims and damages can continue after death (like medical bills and lost wages) and which ones often cannot (like pain and suffering in some states, or punitive damages against a deceased defendant).
🚫 Critical Mistakes That Can Cost Everything: You will be able to identify and avoid the most common and costly errors families make, such as waiting too long to act, mismanaging family disagreements, and failing to preserve crucial evidence now that the key witness is gone.

The Ghost of an Old Law: Why We Need “Survival Statutes”

For centuries, the legal system operated under a harsh and unforgiving common law rule from England called actio personalis moritur cum persona. This Latin phrase simply means, “a personal action dies with the person”. In practice, this meant that if you were injured and sued someone, but you died before the case finished, your lawsuit was immediately and permanently terminated. The law viewed the dispute as a purely personal matter that couldn’t outlive you.

This created terrible injustices. A person who caused a catastrophic injury could escape all civil responsibility if their victim died from those injuries before a final judgment was reached. The victim’s family would be left with mountains of medical debt and no legal way to hold the wrongdoer accountable for the harm, pain, and financial losses the deceased suffered before their death.

Recognizing this profound unfairness, every state in the U.S. passed laws to fix the problem. These laws are called “survival statutes”. A survival statute does exactly what its name implies: it allows a legal claim (a “cause of action”) to survive the death of the person who holds it. These statutes fundamentally changed the law by treating a lawsuit not as a personal right, but as a piece of property—an asset that belongs to the deceased’s estate, just like their car or home.

Thanks to survival statutes, when a person dies, their pending lawsuit can be continued by their estate. The goal is to recover the compensation the deceased would have been entitled to had they lived to see the case through. This ensures that a wrongdoer cannot benefit from the death of their victim and that the value of a legitimate legal claim is preserved for the estate’s heirs and creditors.

The Two Pillars of Justice After Death: Survival Actions vs. Wrongful Death Claims

When a person dies because of someone else’s negligence or wrongful act, the law creates two separate and distinct types of lawsuits. These are not interchangeable, and understanding their differences is the single most important factor in post-mortem litigation. The choice of which to pursue, and how, determines who gets the money, what damages can be claimed, and whether creditors can take a piece of the recovery.

What is a Survival Action? The Lawsuit the Deceased Leaves Behind

A survival action is not a new lawsuit; it is the continuation of the deceased person’s original personal injury case. The estate’s personal representative literally “steps into the shoes” of the deceased to keep their existing lawsuit alive. The entire purpose of a survival action is to recover compensation for the losses that the deceased person themselves suffered from the moment of their injury until the moment of their death.

Think of it as the lawsuit the deceased would have continued if they had lived. The damages are calculated based on the deceased’s perspective.

Damages typically recovered in a survival action include:

Medical Bills: All hospital and treatment costs incurred between the injury and death.
Lost Wages: The income the deceased lost because they were unable to work between their injury and death.
Pain and Suffering (State-Dependent): This is a major point of variation. Some states, like West Virginia, allow the estate to recover money for the conscious pain, fear, and emotional distress the person endured before they died. Other states, like Colorado, specifically forbid the estate from recovering damages for the deceased’s pain and suffering.
Punitive Damages: Because this is the deceased’s own claim, punitive damages (meant to punish the defendant for extreme misconduct) are often available. This is a powerful tool not always present in wrongful death cases.

Crucially, any money recovered from a survival action is paid directly to the deceased’s estate. This means the money becomes an asset of the estate and must first be used to pay off the deceased’s debts, taxes, and creditors. Only after all debts are settled can any remaining funds be distributed to the heirs named in the will or by state law.

What is a Wrongful Death Claim? The Lawsuit for the Family Left Behind

A wrongful death claim is a completely new and separate lawsuit created by state law for the exclusive benefit of the deceased person’s surviving family members (like a spouse, children, or parents). This lawsuit does not belong to the estate; it belongs directly to the survivors. Its purpose is to compensate the family members for the losses they have personally suffered because their loved one is gone.

The damages are calculated from the family’s perspective, focusing on what they have lost.

Damages typically recovered in a wrongful death claim include:

Loss of Financial Support: The value of the income and benefits the deceased would have provided to the family for the rest of their life.
Loss of Companionship and Society: Money to compensate for the loss of the deceased’s love, comfort, care, protection, and guidance. This is often the largest part of a wrongful death award.
Loss of Household Services: The value of the tasks the deceased performed, such as childcare, home maintenance, or cooking.
Funeral and Burial Expenses: The costs of the funeral and burial are often recoverable in this type of claim.

The most important distinction is that money recovered from a wrongful death claim is paid directly to the surviving family members. It is not an asset of the estate and is therefore shielded from the deceased’s creditors. This creates a critical strategic consideration, especially if the deceased had significant debts.

| Feature | Survival Action | Wrongful Death Claim | |—|—| | Whose Lawsuit Is It? | The deceased person’s original lawsuit, continued by the estate. | A new lawsuit that belongs to the surviving family members. | | What Is It For? | To compensate the estate for the harm the deceased suffered before death. | To compensate the family for the harm they suffered after the death. | | Who Gets the Money? | The estate. The money is subject to the deceased’s creditors and debts. | The family members directly. The money is protected from the deceased’s creditors. | | Key Damages | Medical bills, lost wages, and pain and suffering before death. | Loss of future financial support and loss of companionship. | | Punitive Damages | Generally allowed, to punish the defendant for harming the deceased. | Generally not allowed (with some state exceptions). |

The Gatekeeper of the Lawsuit: Appointing a Personal Representative

An “estate” is just a collection of assets and debts; it can’t hire a lawyer or make decisions. To act in the real world, the estate needs a legally appointed person to be its voice and hands. This person is called the personal representative, and getting one appointed by a court is the mandatory first step to continuing any lawsuit.

Executor vs. Administrator: Who’s in Charge?

The term “personal representative” is a general title for two specific roles.

An Executor is the person named in the deceased’s will to manage their estate. The deceased chose this person themselves.
An Administrator is the person appointed by a probate court when someone dies without a will (this is called dying “intestate”), or if the person named in the will cannot or will not serve.

Whether an executor or an administrator, this person is a fiduciary. This is a legal term that means they have the highest duty of trust and must act with complete honesty and loyalty, always putting the best interests of the estate’s beneficiaries and creditors first. They are responsible for every decision made on behalf of the estate, including all litigation strategy.

The Step-by-Step Process of Getting Appointed

You cannot simply declare yourself the personal representative, even if you are named in a will. The authority must be officially granted by a probate court. This process is separate from the civil lawsuit and is a common source of dangerous delays.

Here are the typical steps involved:

File a Petition for Probate: The person who wants to be appointed (usually with the help of a probate attorney) files a formal request, called a “Petition for Probate,” with the court in the county where the deceased lived. This petition typically includes the original will (if one exists) and a certified copy of the death certificate.
Give Notice to All Interested Parties: The law requires that all potential heirs, beneficiaries named in the will, and known creditors be formally notified of the probate hearing. This notice gives them a chance to object to the will or the appointment of the proposed representative. Notice must also usually be published in a local newspaper to alert any unknown creditors.
Attend the Court Hearing: The probate judge holds a hearing to confirm the validity of the will and officially appoint the personal representative. If there are no objections and all the paperwork is in order, the judge will sign an order approving the appointment.
Receive “Letters”: After the hearing, the court clerk issues a formal document called either “Letters Testamentary” (for an executor) or “Letters of Administration” (for an administrator). This document is the official proof of authority. Without these “Letters,” no one has the legal power to access bank accounts, manage property, or, most importantly, continue the lawsuit.

This probate process can take weeks or even months, especially if family members are in disagreement. This delay is extremely dangerous because the clock on the civil lawsuit’s deadlines may already be ticking.

Scenario 1: The Peril of Probate Delays

A man is seriously injured in a construction accident and files a lawsuit. He tragically dies from his injuries two months later, leaving behind a wife and two adult children from a previous marriage who do not get along. The construction company’s lawyer immediately files a “Suggestion of Death” in the civil case, starting the 90-day clock for the family to substitute a personal representative.

The Mistake	The Legal Consequence
The wife and children argue for weeks over who should be in charge of the estate. They delay hiring a probate lawyer and filing the Petition for Probate.	The 90-day deadline in the civil lawsuit passes before the probate court can appoint a personal representative. The construction company’s lawyer files a motion to dismiss the case.
The family finally gets a personal representative appointed on day 105 and immediately files a motion to substitute into the lawsuit.	The judge has no choice but to grant the dismissal. Under the mandatory rule, the motion to substitute was filed too late. The family’s multi-million dollar lawsuit is permanently lost due to a procedural error.

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The Ticking Clock That Can Erase Your Lawsuit: The Substitution Process

Once a personal representative is appointed, they must take formal action in the civil lawsuit to replace the deceased’s name with their own. This process, called substitution of parties, is governed by strict, unforgiving deadlines. Missing this deadline is one of the most common and heartbreaking ways that a valid lawsuit is lost forever.

Step 1: The “Suggestion of Death” and the Start of the Countdown

The process begins when a document called a “Suggestion of Death” or “Notice of Death” is filed with the civil court and served on all parties. This is a simple notice that officially informs the court that a party has died. Any party to the lawsuit can file it, but it is often filed by the opposing side’s attorney, who may want to start the clock and apply pressure.

The moment this document is served is legally critical. In federal court and in many states like Florida and Georgia, the filing of the Suggestion of Death triggers a countdown clock—a strict, non-negotiable deadline to file the next document.

Step 2: The Motion to Substitute

The next step is for the personal representative to file a “Motion to Substitute” with the court. This is a formal request asking the judge to amend the case name, replacing the deceased person with the personal representative in their official capacity (e.g., “Jane Smith, as Executor of the Estate of John Smith, Deceased”). This motion must be accompanied by proof of the representative’s authority—the Letters Testamentary or Letters of Administration from the probate court.

Step 3: The Deadline—A Procedural Guillotine

The time limit for filing the Motion to Substitute is the most dangerous trap in this entire process. Many court systems have a zero-tolerance policy for missing it.

Federal Courts & Florida: Under Rule 25 of the Federal Rules of Civil Procedure and Florida’s similar Rule 1.260, the motion must be made within 90 days after the Suggestion of Death is served. If it is not, the lawsuit must be dismissed as to the deceased party. This is not optional for the judge; dismissal is mandatory.
Georgia: Georgia provides a more generous but equally strict 180-day period.
California & New York: These states use a more flexible “reasonable time” standard, but a court can still dismiss a case if there is an unreasonable delay that harms the other side.

This deadline creates a high-stakes race. The family must navigate the grief of losing a loved one, potentially deal with family conflicts, hire a probate lawyer, get a personal representative appointed by one court system, and then file the correct motion in a completely separate court system—all before the clock runs out.

A California Shortcut: The “Successor in Interest”

California law offers a unique and valuable shortcut to avoid the time and expense of a full probate process in certain situations. This is done through a person called a “successor in interest”. A successor in interest is typically a direct heir, like a spouse or child, who is entitled to the deceased’s property.

This person can continue a lawsuit without being appointed as a personal representative, but only if two strict conditions are met:

No probate case for the deceased’s estate has been opened or is currently pending in California.
No personal representative has been appointed for the estate.

To use this procedure, the successor in interest must file a sworn statement (an affidavit or declaration) with the civil court. This document states that they are the legal successor and that the above conditions are met. This is an incredibly useful tool for smaller estates or when the lawsuit is the main asset, as it allows the family to bypass the probate court entirely.

Pros of Using a Successor in Interest	Cons of Using a Successor in Interest
Avoids Probate Court: Saves significant time, money, and complexity by not having to open a formal estate.	Strictly Limited Availability: Only works if no probate is open and no personal representative is appointed.
Faster Continuation: Allows the lawsuit to move forward much more quickly without waiting for a probate hearing.	Potential for Heir Disputes: Can be complicated if there are multiple heirs who disagree on who should take charge of the lawsuit.
Ideal for Simple Estates: Perfect for situations where the lawsuit is the primary or only significant asset.	Not Suitable for Complex Estates: Does not work if the deceased had many assets, debts, or a complicated will that requires formal administration.
Reduces Legal Fees: Can lower overall legal costs by eliminating the need for a separate probate attorney.	Liability for the Successor: The person who signs the affidavit takes on the responsibility and potential liability for managing the lawsuit correctly.
Empowers Heirs Directly: Puts the control of the lawsuit directly in the hands of the family members who will benefit.	May Not Be Recognized by All Entities: Some defendants or insurance companies may be more hesitant to negotiate with a successor than with a court-appointed representative.

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Which Lawsuits Live and Which Die? The Nature of the Claim Matters

While survival statutes are powerful, they don’t apply to every type of lawsuit. The law makes a clear distinction between claims involving economic or property rights and those that are considered purely personal to the individual. The core question is: does the lawsuit affect the financial value of the estate?

Claims That Almost Always Survive Death

If a lawsuit’s outcome would increase the estate’s assets or decrease its liabilities, it is almost certain to survive. These claims are seen as protecting the property of the estate.

Breach of Contract: A contract is a financial agreement, and a breach causes a financial loss. The estate has the right to recover that loss. The only exception is for “personal service” contracts, like an agreement for a famous artist to paint a portrait; the estate cannot perform this unique service, so the contract ends with death.
Property Disputes: Lawsuits over ownership of real estate, trespassing, or damage to property directly involve the assets of the estate and therefore survive.
Personal Injury (with Economic Loss): A claim for a personal injury that caused the deceased to incur medical bills or lose wages before death survives because it seeks to recover money the estate has lost.

Claims That Often Do Not Survive Death

Lawsuits that are deeply personal and do not involve a direct financial loss to the estate often terminate, or “abate,” upon death. The harm is considered to have died with the person.

Defamation (Libel and Slander): A person’s reputation is considered a personal attribute. A lawsuit to protect it cannot be continued by their estate, as the harm was to the individual, not their property. Many state survival statutes explicitly list defamation as a claim that does not survive.
Divorce: A marriage is a personal legal status between two living people. When one spouse dies, the marriage is legally terminated by death, making the divorce case moot. Any disputes over property are then handled in probate court, not family court.

Scenario 2: The Medical Malpractice Case Without a Witness

An elderly woman undergoes hip surgery. After being discharged to a rehab facility, she complains of severe pain and unusual symptoms for weeks, but her concerns are dismissed by the staff. She develops a severe infection and dies. Her family believes the facility was negligent, but the only person who can describe the symptoms and conversations with the nurses is gone.

The Action Taken	The Outcome
The family’s attorney immediately requests and preserves all of the woman’s medical records from the hospital and the rehab facility.	The records show a timeline of the woman’s complaints, the nurses’ notes dismissing them, and lab results showing the rising infection. This documentary evidence becomes the backbone of the case.
The attorney hires a medical expert in geriatric care and infectious diseases to review the records.	The expert provides a sworn opinion stating that the facility breached the standard of care by ignoring the clear signs of infection, and that this breach directly led to the woman’s death.
The attorney takes depositions of the nurses and family members who visited the woman.	The family members provide emotional testimony about her visible pain and suffering. The nurses’ conflicting accounts of what happened further strengthen the case for negligence. The lawsuit proceeds successfully based on this collection of evidence.

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The Evidence Gap: How to Prove a Case When Your Star Witness is Gone

The single greatest practical challenge after a plaintiff’s death is the loss of their testimony. The deceased was often the most important—and sometimes the only—witness to the key events of the case. This creates a major hurdle for the personal representative, who must now find other ways to prove what happened.

Without the plaintiff’s voice, the case must be rebuilt using other sources of evidence.

Key sources of evidence include:

Deposition Testimony: If the deceased gave a deposition (sworn testimony recorded before trial) before they died, that transcript is incredibly valuable and can often be used in court.
Witnesses: Testimony from family, friends, coworkers, or first responders who saw the accident, witnessed the deceased’s suffering, or heard them talk about the incident becomes essential.
Documents: Medical records, police reports, emails, text messages, and business records can provide a factual, unbiased timeline of events.
Expert Witnesses: In complex cases, experts like accident reconstructionists or medical specialists can analyze the available evidence and provide a professional opinion on what likely happened and who was at fault.

Family Feuds and Legal Hurdles: Navigating Internal Conflicts

The stress and grief following a death can amplify pre-existing family tensions, which can spill over into the lawsuit and cause serious problems. Disagreements over who should be the personal representative, whether to accept a settlement, or how to divide the money can derail a case.

One major legal issue that can arise is the “single action rule,” which exists in states like California for wrongful death cases. This rule requires that all known heirs of the deceased must be joined together in one single lawsuit. You cannot have multiple family members filing separate wrongful death claims for the same death.

This creates a huge responsibility for the heir who files the lawsuit. They must identify and include all other potential heirs, even if they are estranged or do not want to participate. If an heir is left out, they can later sue the heirs who did receive money for their share of the settlement.

Settlement decisions are another common flashpoint. One family member may be emotionally exhausted and want to accept a settlement offer to end the process, while another may want to push for a trial, believing they can get more money. The personal representative is caught in the middle and must act in the best interest of the entire estate, which can be difficult when the beneficiaries themselves are divided.

Scenario 3: The Divided Siblings and the “Single Action Rule”

A man is killed in a workplace accident. He is survived by two adult children: a son who was financially dependent on him and a daughter who was estranged and had not spoken to him in years. The son hires a lawyer to file a wrongful death lawsuit against the company.

The Mistake	The Legal Consequence
The son, believing his estranged sister has no right to any money, tells his lawyer she doesn’t exist. He files the wrongful death lawsuit on his own, violating the “single action rule.”	The company, unaware of the daughter, settles the case with the son for $1 million. The son receives the money directly.
A year later, the daughter learns about the settlement. She hires her own lawyer and sues her brother.	The court rules that the daughter was a legal heir and was wrongfully excluded from the lawsuit. It orders the son to give his sister a portion of the settlement money he already received.

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Mistakes to Avoid When a Plaintiff Dies

Navigating a lawsuit after a death is a minefield of potential errors. A single mistake can have devastating financial and legal consequences. Here are the most critical mistakes to avoid.

Waiting Too Long to Open Probate: The clock on the civil lawsuit’s substitution deadline starts ticking independently of the probate process. Delaying the appointment of a personal representative is the number one reason lawsuits are dismissed. You must act with urgency.
Missing the Substitution Deadline: Forgetting or failing to file the Motion to Substitute within the strict 90-day (or other) deadline is a fatal, non-recoverable error. The case will be dismissed, and the legal claim will be lost forever.
Confusing Survival and Wrongful Death Claims: Failing to understand that these are two separate actions can lead to catastrophic financial outcomes. Allocating a settlement incorrectly could mean money that should have gone directly to the family is instead seized by the deceased’s creditors.
Failing to Join All Heirs: In states with a “single action rule,” intentionally or accidentally leaving out a known heir can lead to future lawsuits between family members and potential legal malpractice claims against the attorney.
Not Preserving Evidence: With the primary witness gone, every piece of physical and documentary evidence is now ten times more important. Failing to secure medical records, accident reports, photos, or witness contact information immediately can cripple the case.

Do’s and Don’ts for the Personal Representative

As the personal representative, you are now the captain of the ship. Your decisions will determine the outcome of the lawsuit. Here are some essential do’s and don’ts to guide you.

Do’s	Don’ts
Do Act Immediately: Contact a probate attorney and a litigation attorney right away to get both legal processes started.	Don’t Assume You Have Plenty of Time: The 90-day clock is real and unforgiving. Do not wait.
Do Communicate with All Heirs: Keep all beneficiaries informed about the status of the lawsuit and major decisions, even if they are difficult.	Don’t Play Favorites or Hide Information: As a fiduciary, you have a duty to all heirs. Unequal treatment can lead to you being sued.
Do Gather and Preserve All Evidence: Secure every possible document, photo, and witness name related to the case.	Don’t Discard Anything: What seems unimportant to you might be a key piece of evidence for your lawyer.
Do Understand Your Fiduciary Duty: Remember that you must act in the best interests of the entire estate, which includes both heirs and creditors.	Don’t Make Decisions Based on Personal Feelings: Your choices must be guided by legal advice and your duty to the estate, not family politics.
Do Rely on Your Legal Team: Let your attorneys guide you through the complex procedural rules and strategic decisions.	Don’t Try to Handle It Alone: This is a highly specialized area of law. Trying to navigate it without expert legal help is a recipe for disaster.

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Frequently Asked Questions (FAQs)

1. Can the estate sue for the deceased’s pain and suffering? Yes, in some states. This is recovered through a “survival action.” However, other states specifically prohibit recovering these damages, so it depends entirely on state law.

2. What happens if the person being sued (the defendant) dies? No, the lawsuit does not end. The plaintiff must substitute the deceased defendant’s estate as the new defendant. Punitive damages, however, are generally not recoverable from an estate.

3. Who gets the money from the lawsuit? It depends. Money from a “wrongful death” claim goes directly to the surviving family members. Money from a “survival action” goes to the estate and is used to pay debts first.

4. How long do I have to continue the lawsuit? You must act fast. In many courts, you have only 90 days from the formal “Suggestion of Death” to file a “Motion to Substitute.” Missing this deadline will result in a mandatory dismissal.

5. Do I need to open a probate case to continue the lawsuit? Usually, yes. You need a court-appointed personal representative. California offers a shortcut for heirs called a “successor in interest” affidavit, which can avoid probate in some specific situations.

6. Can a lawsuit over a divorce continue after a spouse dies? No. A divorce action is considered purely personal and ends automatically upon the death of a spouse. Any property disputes are then resolved through the probate court according to inheritance laws.

7. What if the deceased owned property jointly with someone else? If the property was owned as “joint tenants with right of survivorship,” the property automatically passes to the surviving owner. It does not become part of the deceased’s estate or the lawsuit.