Intricacies of Dealing with Deceased Parties

August 13, 2021

Personal injury and property damage claims survive death, but only in a limited fashion. Under Idaho Code § 5-327(1), punitive and exemplary damages are barred when sought against a decedent (i.e., the deceased defendant).


Under Idaho Code § 5-327(2), a deceased plaintiff’s personal injury and property damage claims survive death, but the estate/heirs may only seek damages for, “(i) medical expenses actually incurred, (ii) other out-of-pocket expenses actually incurred, and (iii) loss of earnings actually suffered, prior to the death of such injured person and as a result of the wrongful act or negligence.” The Idaho Supreme Court has similarly weighed in and stated, “[A]n action for pain and suffering does not survive the death of the injured.”


The first place to start with time limits are the applicable statutes of limitations: 

  • two years for wrongful death or personal injury,
  • three years for injury to personal property, 
  • four years for oral contract,
  • five years for written contract, etc. 

That being said, wrongful death claims are often subject to longer statutes of limitations, particularly as there are often minor heirs. Under Idaho Code § 5-230, every statute of limitations (other than for recovery of real property) is extended up to six years. This may mean that a statute of limitations for an adult has run but can last for substantially longer for any person who was a minor at the time the claim accrued. 

In addition to Idaho Code § 5-230, which extends the time to bring a claim for a minor, all claims against a decedent are extended. Idaho’s probate code states, “The running of a statute of limitations measured from an event other than death or the giving of notice to creditors is suspended during the four (4) months following the decedent’s death but resumes thereafter as to claims not barred pursuant to the sections which follow.” As the Idaho Supreme Court has noted, this statute provides, “a four-month tolling of the applicable statute of limitations following a decedent’s death.” Thus, based on the plain language, the applicable statute of limitations is tolled if the ostensible defendant dies during the running of the statute of limitations.  

Who needs to sign the settlement agreement?

When settling claims, it is important to have all the necessary participants agree. If the defendant has passed away, then likely the proper party to the settlement (if a signature from the defendant is required) is the personal representative or special administrator. Outside of wrongful death claims, the same is likely true for a decedent plaintiff. 


  • In a wrongful death claim, it is important to have all parties in interest sign the releases. This means that the personal representative of the estate and all heirs must sign for all claims to be resolved. Where there are minors, this will likely require minor’s compromises. This may take significant negotiation to reach a result that all heirs are willing to accept, particularly if the heirs do not agree on how to distribute the settlement proceeds. 
  • If the settlement proceeds are insurance funds, then this problem can potentially be resolved by interpleading the insurance funds. If, however, there is excess exposure, or the heirs/representatives cannot agree on a settlement amount, then it may be impossible to settle with some or any of the heirs until the statute of limitations has run. 
  • Stated another way, settling with some heirs does not mean that the remaining heirs are barred from bringing independent claims under the wrongful death statute. 

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.