Differences Between A Deceased Plaintiff And Defendant: Why It Matters

September 7, 2021

A deceased plaintiff and a deceased defendant are vastly different things. In some respects, there are similarities, as the attorney needs to determine what claims and damages, or defenses transfer from the decedent to a substitute party. However, other things are very different. For example, if the plaintiff dies as a result of the tortious activity, not only is a new party needed to be substituted in place of the plaintiff, but the plaintiff’s heirs are also all now plaintiffs under the wrongful death statute. It is therefore important to know the procedures that apply to a death before a lawsuit and during a lawsuit. The attorney must also know who the proper party is to substitute as a representative for the deceased person.  These factors also affect who is the real party in interest, who needs to sign settlement agreements, who can execute on judgments, and who can be served. 


Who should be bringing or defending the lawsuit depends on when the decedent passes away, and whether the claim that inspires the lawsuit was the cause of death. If the plaintiff or defendant is alive at the time the lawsuit is filed, they are likely the proper party to bring/defend the suit.


If a defendant passes away before the lawsuit is filed, then the person most proper to be served is the representative of the defendant’s estate. If there has been no personal representative appointed at the request of the decedent’s family or friends, other steps can be taken to make sure a person with standing can fill the role of defendant. For example, if there is no one who wants to act as personal administrator for the estate, a Special Administrator can be appointed purely for the purpose of dealing with the lawsuit. Typically, a motion is filed with the Court to appoint the Special Administrator. This motion will explain why a Special Administrator is desired over a Personal Representative and will ask that the Special Administrator’s duties be limited to dealing with the lawsuit. While a family member or friend is likely ideal to fill the role of special administrator, if the defendant has no family or friends, there is no legal requirement indicating that the person acting as special administrator be in any special relationship with the decedent. Any attorney representing the decedent in a civil action should take care to look for conflicts that may arise should the attorney also represent the estate/probate generally. 


It is often the case that an estate is not timely opened by a family member or friend, and that an attorney hired to defend the estate in a civil action does not have access to someone who is willing to fill the role as personal representative or special administrator. Under such circumstances, the plaintiff, as a creditor of the estate, may seek to have themselves appointed as personal representative. This can cause significant confusion and complexity. 


  • In insurance defense cases, the attorney hired to represent the deceased defendant may end up representing the plaintiff, who has been appointed the personal representative. Needless to say, this creates significant conflicts. 
  • The best way to avoid this situation is to find a personal representative or special administrator to be appointed to address the lawsuit before the plaintiff files a petition to be appointed.
  • This may mean seeking to appoint someone who has no limited connection to the decedent, including possibly a legal secretary, paralegal, insurance representative, or learning whether the county has a public administrator available to fill the role. 

Please contact a Gjording Fouser lawyer at 208.336.9777 if you would like any additional information about this topic or any other issues facing your company.