After being injured in an accident, you might discover that the person who hurt you has passed away. How do you get compensation from someone who is no longer here? An attorney can help you sue their estate for your damages.
It is not possible to literally file a lawsuit against someone who has passed away. Instead, your lawyer can help you sue the estate of the person you believe is responsible for your injuries and damages. Depending on when the defendant died, you might have time beyond the normal statute of limitations to file your case. Typically, plaintiffs have 1 year from the date of the defendant’s death to file a case. If you discover that the defendant in your case has passed away, talk to your lawyer immediately, as the process of suing their estate might be time-consuming. While suing a deceased defendant is not an extremely common problem, it comes up more often than people realize. Speak to your lawyer immediately if the defendant in your case has passed away.
Ask our Pennsylvania personal injury lawyers for a confidential, free assessment of your case by calling the Reiff Law Firm at (215) 709-6940.
Can I Sue Someone Who Has Passed Away in Pennsylvania?
Death is a natural part of life. For many, the death of a loved one can be emotionally very difficult to get through. Death can be challenging for other reasons, too. If you were injured in an accident caused by another person, but that person passes away before you can sue them for damages, you might have trouble getting fair compensation. Without anyone to sue, you might be left with high damages and no way to cover the costs. This begs the question, can you sue a dead person?
Literally speaking, the answer is no; you cannot sue a dead person. Once someone passes away, they cannot be sued. They are no longer here to be held liable or defend themselves in court. However, your legal claims do not simply disappear.
According to 42 Pa.C.S. § 8302, all causes of action may survive the death of a plaintiff or defendant. This means your personal injury or other claims do not die with the defendant.
Instead of suing the defendant directly, our personal injury attorneys can help you sue their estate. This can sometimes be tricky if the defendant passes away and you do not find out until some time later. Instead of suing the defendant, you can sue the personal representative of their estate. If you win, your damages may be covered by the estate.
How Does Suing a Deceased Defendant’s Estate Work in Pennsylvania?
When someone dies, their money, assets, and property are all put together into a legal entity called their “estate.” A deceased person’s estate might include their house, their bank accounts, their car, and any other property they owned. But these estates are not just out there floating around; if someone dies with a will, their will usually appoints an “executor” or “personal representative” to manage the estate. This is the person who deals out their estate to their heirs and takes care of any outstanding business or debts in the deceased person’s name. This is also the person who handles any lawsuits on behalf of the deceased person or filed against the deceased person.
Wills have to go through a legal process called probate, which is all public record. If someone dies without a will, the probate court can often assign an executor instead. These steps ensure that there is always a named person on public record who is responsible for accepting lawsuits that would have been filed against the dead person. They also take up any lawsuits currently in progress if your case was filed before the defendant died.
All of the same rules and procedures regarding fault, deadlines for responding to lawsuits, and liability still apply when the defendant is dead; everything just swaps to the executor/personal representative and their lawyer being the one to defend the case instead of the individual and their lawyer.
How to File a Claim Against an Estate When the Defendant in Your Case Dies
If you already filed the case against the defendant and then they died, the court will usually swap in the executor/personal representative and change the case to be against the defendant’s estate without much hassle. However, if the defendant died before you filed the case, things can be a bit more complex.
First and foremost, you need to know who the defendant was in your initial case. If you have their phone number and no other info, you might be unable to call them up and get the rest of their info to write up the complaint. As such, it is important for us to track down police reports and other official records of your accident or injury so that we can make sure we get the right defendant to file your case against.
When we file the case, you can leave it to our Pennsylvania personal injury lawyers to determine what name we put on the caption of the case (i.e., whether we say it is against the deceased defendant, the defendant’s estate, or the personal representative).
From there, our next issue will be making sure we get effective service. Lawsuits need to be served on the defendant – i.e., they need a copy of the complaint sent to them. Often, this means sending it to the executor of the estate, but if an executor was never actually appointed, things can be more complicated. If the dead defendant’s heirs are dragging their feet on submitting to probate court, we may need to get court orders to move the case forward.
Can You Sue a Dead Defendant’s Heirs for Injuries in Pennsylvania?
Note that we’ve been discussing this kind of case as a lawsuit against the estate, not the deceased defendant’s heirs. When a person dies, their family goes to probate court, and the court either uses their will or the default “intestacy” laws in Pennsylvania to determine who to appoint as executor. It is at this point that the executor and the court determine who the person’s heirs even are and what property/money/assets should be given to them. However, probate can be a long process, and there should be time for claims to come against the dead person’s estate before the money is ever distributed to the heirs.
This allows us, perhaps, a limited window of time to make our claim. If the money and assets in the estate get distributed to the person’s heirs, then they are no longer part of the estate, and it will be harder to claw back those items or funds and put them back into the estate. As such, we usually need to file a claim against the estate and get your damages paid all before the money can be split up among the deceased person’s heirs.
Things can also be complex if the defendant had “non-probate assets” like a trust, “Totten accounts,” or other POD (pay on death) or TOD (transfer on death) assets that do not go through a will. These things might not become part of the person’s estate, and reaching them in a lawsuit might be more difficult than reaching the items and assets that pass through a probate court’s jurisdiction. Instead of being tied up in that system and being made available to pay for your damages, these assets and funds might pass to the heirs before we have a chance to make a claim against them.
When Do I Have to File a Lawsuit Against a Deceased Defendant in Pennsylvania?
There are a few deadlines to consider when you are suing the estate of a deceased defendant. First, there is the normal statute of limitations for your claims. If you have a personal injury claim, you must file your case according to the personal injury statute of limitation under 42 Pa.C.S. § 5524(2). This law holds that personal injury claims must be filed with the court no later than 2 years after the date of the injury.
The deadline to file your case might change depending on when the defendant passed away. According to 42 Pa.C.S. § 3383, if the defendant passed away within a year of the normal statute of limitations, your deadline to file is extended to 1 year from the date of the defendant’s passing. This may extend your deadline somewhat beyond the original 2-year time limit.
For example, suppose you were injured in an accident on June 1, 2023. Under the normal statute of limitation, you would have until June 1, 2025 to file your personal injury lawsuit. Suppose the defendant died 18 months after the accident on December 1, 2024. Your deadline to sue the defendant’s estate would be extended by 1 year from this date, until December 1, 2025. This way, you effectively have 6 months longer to file your claims.
What Do I Do if I Find Out the Person I Want to Sue Has Died in Pennsylvania?
If you discover the person you planned on suing has passed away, tell your lawyer immediately. To file your case, you need to sue the estate. Depending on how the deceased defendant left their affairs, there may or may not already be an existing estate and personal representative. If there is not, you might have to work with the court to open an estate and name a personal representative. Heirs of the deceased defendant must also be notified and involved.
You and your lawyer may need to file a petition with the court to open an estate and appoint a personal representative. The court may then notify the heirs of the estate. It can take a month or more before the petition is decided and the estate is opened.
Is The Death of Defendants a Common Problem in Pennsylvania Civil Cases?
While death is certainly common – it happens to everyone, after all – lawsuits involving deceased defendants are not exactly an everyday occurrence. Most people who file civil lawsuits probably do not have to deal with the sudden death of one of the parties. However, some do, and you need to talk to your attorney and be prepared, just in case.
One of the most common ways that we see defendants pass away before a lawsuit can be filed is in car accident cases where the defendant might have been killed in the crash. Sometimes serious car accident cases see the victim survive, but the at-fault driver die. Other cases see both drivers die, and it is possible our lawyers could be filing a wrongful death suit for your loved one’s death against the estate of a driver who also died in the crash.
This kind of thing is a bigger problem when the defendant is older or in poor health. For example, if you were in a car accident where the negligent driver was in their eighties and really should not have been driving, you should talk to your lawyer about what to do if the defendant suddenly passes away. Similarly, if the defendant is sick and not expected to recover, you should talk to a lawyer about what to do if tragedy strikes.
Contact Our Pennsylvania Personal Injury Attorneys if the Person Who Hurt You Has Died
Ask our Allentown personal injury lawyers for a confidential, free assessment of your case by calling the Reiff Law Firm at (215) 709-6940.
