What Happens if a Litigant Dies?
Lawsuits often take years to be resolved, since parties need to conduct discovery, file motion, and complete other tasks during the life of a case. In addition, personal injury lawsuits may involve litigants who are infirm due to injuries they suffered from the negligence of others. Sometimes, parties pass away while a lawsuit is pending, and there are certain things that must be addressed when asking what happens if a litigant dies before a case reaches a resolution.
Estate Process
One of the first things that happens if a litigant dies is that an estate must be established for the person who passed away. There is an old expression that earthly courts do not have jurisdiction over the dead, and courts need to hold someone accountable for the party who passed away. If the litigant who died had a will, it is simpler to create an estate and appoint an executor. If the litigant does not have a will, it is possible to still have an administrator appointed for the party. After an estate has been established, the representative of the person who died will be substituted for the party who has passed away, and the case can continue. Because the estate process can be complicated, if it seems as if a litigant may pass away, it pays to work with a law firm that has experience with estates and related issues.
Evidence
Another issue that arises if a litigant dies involves evidence that may be admissible in a case. Courts generally require parties to testify in court about matters that are involved in lawsuits. However, when parties pass away, it may be harder for their stories to be presented to a court. In many instances, depositions from a party who dies may be admissible so long as the party against whom the deposition is introduced had the chance to cross-exam the witness. However, sometimes parties are infirm when they begin their depositions and pass away after a deposition has started and before the proceeding concludes. In this instance, courts typically look to whether parties against whom the evidence is introduced had the chance to cross-exam the witness and ask all questions that may related to issues involved in a lawsuit.
Besides depositions, there are other ways to introduce evidence of deceased persons involved in lawsuits. Many jurisdictions allow statements made by deceased parties to be admitted into evidence so long as the statements were made under circumstances that indicate that the statements were reliable. Courts usually hold that when such statements are made under oath or under circumstances where the person would not benefit from lying, there is enough reliability that the statements should be admitted. Furthermore, some statements will be admitted from deceased persons if they relate to certain situations. For instance, contemporaneous statements from deceased persons or statements against interest will typically be admitted even if the person has passed away and cannot testify in court.
Many states also have rules regarding what can be said about people who have passed away. These laws are often called “dead man statutes” and they make it difficult for people to introduce evidence about communications or transactions that they had with people who have passed away. The reason behind such laws is that a deceased person cannot defend themselves from accusations made during litigation, so it would be unfair to allow parties to introduce certain kinds of evidence related to deceased persons. These laws normally do not involve physical evidence such as memos, letters, and other writings, so it pays to keep all records if a party wishing to introduce evidence about transactions with deceased persons.
Recovering from Deceased Party
A further matter that arises if a litigant dies is that unique strategies need to be pursued in order to recover a monetary judgment. Normally, when a party tries to recover against a living person, the recovering party can garnish wages, take money from bank accounts, and use other methods. However, if a litigant dies, a party seeking to recover a judgment must typically go after the deceased person’s estate.
The first step to recovering money from estate is to file a notice of claim against the estate. Parties usually only have a limited amount of time to make a notice of claim, typically nine months to a year. The party seeking a monetary recover from an estate usually needs to submit proof showing that there is a judgment against the estate or may be entered against the estate as a result of acts committed by the deceased person. If the estate refuses to pay out a judgment creditor, that party may need to separately sue the estate in order to recover money owed to that party. Sometimes it is necessary to hire private investigators to discover all of the assets controlled by the estates and uncover information about estate proceedings that involved a deceased person from whom a party seeks to recover.
The Rothman Law Firm has substantial experience with all kinds of litigation, including lawsuits in which one party to a case passes away. We understand all of the issues surrounding how to proceed against an estate if a litigant dies, and how to defend against such claims. If you are seeking a skilled New York and New Jersey litigation attorney, please feel free to contact The Rothman Law Firm to request a free consultation.