Litigating from the Grave: Claimant Dies Before Lawsuit

Take note: a dead person cannot file a lawsuit.

Obvious, you say? Well, apparently obvious is never a barrier to stupidity, so we have a long line of cases where appellate courts have had to clarify that dead people can’t litigate.

Here are a few gems.

“A deceased person does not have an actual or legal existence and thus cannot bring suit.”

“A deceased person cannot, without a personal representative, invoke a court’s jurisdiction.”

“In cases where a plaintiff dies after having filed suit, claims that survive her death belong to her heirs, subject to the administration of her estate.”

And for those (thankfully) few attorneys who believe that a death certificate is merely an opinion regarding lack of life: “[The attorney’s] professed, but unsupported, belief that [the decedent] is still alive and either in a coma induced by her sons or cryogenically frozen, is unreasonable by any standard…”

Courts have concluded that it is unreasonable for an attorney to hold discussions about taking the deposition of his dead client, to continue to litigate a case for months after his client dies, to fail to disclose a client’s death to the trial judge and the opposing counsel, to file a suit on behalf of a client without confirming that the client is still alive, and to continue settlement negotiations on behalf of a dead client.

That is not to say that parties do not die before or during a lawsuit. They do.

It is also not to say that a claim that belonged to the decedent cannot be pursued. It can.

But you have to follow the rules.

What happens to a lawsuit when the plaintiff dies?

When a person dies, his claim passes to his heirs or devisees, subject to the administration of his estate (Section 7, Rule 151). What usually happens, procedurally, is that a probate is opened up and a personal representative (an executor or administrator) is appointed to act on behalf of the estate. The personal representative then substitutes into the lawsuit as a party.

If the person dies before the lawsuit is filed, then the personal representative files the lawsuit as the party. The lawsuit is filed in the name of the personal representative of the estate. It is not filed in the name of the dead person.

The claim becomes an asset of the deceased’s probate estate. The legal fees are paid by the probate estate, and the decision to settle or not settle a case is made by the personal representative.

That is what is supposed to happen.

What is not supposed to happen is for a lawyer to file a lawsuit on behalf of a client whom he has not heard from in two years, and whom he thinks, but is not sure, is dead.

What is also not supposed to happen is for the lawyer, after he learns the client had indeed died 2 years before the lawsuit was filed, to hide that fact for three months from the trial judge and the opposing attorney while trying to negotiate a settlement.

Obvious?  Apparently not.

Virginia Hammerle is a Texas attorney whose practice includes estate planningguardianship and probate. Sign up for her newsletter at Contact Hammerle Finley Law Firm to schedule a consultation at

This column does not constitute legal advice.