Can You Still Sue If the Defendant Has Died?

During personal injury lawsuits, it’s not unheard of for a plaintiff to pass away during proceedings. That makes sense—after all, the plaintiff was likely seriously injured, and sometimes those injuries can lead to death.

Less common, but equally confusing, is when a defendant dies in the middle of a lawsuit—or just before a lawsuit is filed. What happens then? Can the case still go forward? Will the plaintiff have to start over?

This guide walks you through what happens when a defendant dies during litigation, how the case can still move forward, and what plaintiffs need to consider when facing this surprising turn of events.

Can a lawsuit continue if the defendant dies?

The short answer is: Yes. In most civil cases, the lawsuit can continue even if the defendant passes away. The real question is how the case continues.

The case doesn’t just vanish because the defendant died. Instead, their legal responsibilities are typically transferred to the defendant’s estate. That means a new person (usually the executor or administrator of the estate) may be substituted in to represent the estate’s legal interests.

Why does the type of case matter?

Let’s start with the basics: the impact of a defendant’s death depends largely on the type of case involved.

• Personal injury or other civil cases: These usually survive the defendant’s death. The case can proceed against the defendant’s estate.
• Criminal cases: These end with the defendant’s death—criminal charges cannot be pursued against someone who has passed away.
• Punitive damages claims: Some states don’t allow punitive damages to be recovered from a deceased defendant’s estate. Punitive damages are meant to punish the wrongdoer, and you can’t punish someone who has died.

So in a personal injury case, if you’re seeking compensation for medical bills, lost wages, or pain and suffering, you likely still have a valid claim. But if your lawsuit includes a request for punitive damages, talk to your attorney—some or all of those damages may no longer be available.

What happens after the defendant dies?

The first step after a defendant dies is procedural: someone needs to notify the court. 

This is typically done by filing a Suggestion of Death. It has a funny name, but the Suggestion of Death is simply a document informing the court and the other parties that the defendant has passed away. 

Once that’s filed, the plaintiff must request that the court substitute the defendant’s personal representative (the person managing the deceased’s estate) into the lawsuit. This is done by filing a motion to substitute party and, often, an amended complaint reflecting this change. 

Until all of this happens, the case may be put on pause (called a “stay”) to give everyone time to sort things out.

Who takes over for the deceased defendant?

As we’ve already discussed, in most cases the defendant’s personal representative becomes the new party in the case. This person is usually appointed by the probate court and may be named in the defendant’s will—or selected by the court if there is no will.

If no one has opened an estate for the deceased defendant, the plaintiff (or their attorney) may need to initiate the process—either by requesting that probate be opened or by asking the court to appoint a public administrator to manage the estate for litigation purposes.

In rare cases, if there’s truly no estate and no representative, the case may stall or even end—especially if there are no assets or insurance to recover from.

What if the defendant dies before the lawsuit is filed?

If the defendant passes away before the lawsuit is filed, you’ll need to name the estate as the defendant when filing the case (e.g., John Smith v. The Estate of Jane Doe).

If no estate has been opened, you may need to petition the probate court to appoint a representative before the lawsuit can proceed.

Some states also require plaintiffs to file a creditor’s claim in the probate case within a specific deadline. Missing that deadline could prevent you from recovering damages—even if you otherwise had a strong case.

What happens if there’s no estate and no insurance?

Unfortunately, if there’s no estate (meaning the defendant didn’t leave behind any assets or money) and no insurance coverage, your legal options may be very limited.

The reality is that most plaintiffs recover compensation through one of two sources:

• Insurance policies (auto, homeowners, umbrella, etc.)
• The defendant’s estate assets

If neither exists, there may be no practical way to recover damages. A judgment against an empty estate is often worth little more than the paper it’s printed on.

Before deciding how to proceed, speak with an experienced attorney. They can evaluate the situation and explore all possible avenues for recovery. In some cases, attorneys may uncover unexpected coverage or third-party liability that could keep your case alive.

Do you have to start over?

No. Fortunately, you don’t need to start your case over if the defendant dies, but you do need to update the case procedurally:

1. File a motion to substitute the deceased defendant with the estate’s personal representative,
2. Amend the complaint to reflect the substitution, and
3. Remove or revise claims that may no longer apply (like punitive damages in some states).

As long as this is done in a timely manner, most courts will allow the case to proceed without issue.

What deadlines should you watch for?

While courts may offer some flexibility, important deadlines can still apply—and missing them could jeopardize your case. Here are a few key timelines to keep in mind:

• Federal courts (and many state courts) give plaintiffs 90 days from the filing of the Suggestion of Death to substitute the deceased party with the appropriate legal representative.
• Probate deadlines: Some states require creditors—including plaintiffs in civil lawsuits—to file a claim in the defendant’s probate estate within 4 to 6 months of the estate being opened, or within a certain time after receiving notice of administration.
• New claims: If the defendant’s death gives rise to additional legal claims (such as claims involving fraud, estate misconduct, or other civil liability related to the defendant’s actions), different statutes of limitation may apply depending on the nature of those claims and when the death occurred.

The bottom line: Don’t wait. Even if you’re still processing what happened, delays can limit or even eliminate your ability to recover damages. A qualified attorney can help you identify deadlines and keep your case on track.

When to talk to a lawyer

Losing a defendant during litigation adds an unexpected legal twist to an already complex process, but it doesn’t mean your case dies with the defendant.

An experienced personal injury attorney can:

• Identify and locate the defendant’s estate or insurance coverage
• File the necessary court documents to keep your case moving
• Navigate probate court requirements and substitution procedures
• Ensure your rights are protected and deadlines aren’t missed

Whether you’re already in the middle of a case or just preparing to file, don’t try to navigate it alone. A knowledgeable attorney can help you assess your options and keep your case alive—even after the defendant is gone.