What Happens to a Lawsuit When the Defendant Dies?

If a personal injury or wrongful death lawsuit is brought against an individual, known as the defendant, who dies while the suit is still pending, this does not necessarily end the case. Most civil cases can continue, with liability passing to the defendant’s estate or personal representative. Whether or not your lawsuit will continue depends on the circumstances.

When Will Liability Pass to the Defendant’s Estate?

Some legal matters can take years to resolve, during which time the defendant may pass away. Others involve not only an injured plaintiff but an injured defendant, as well, who eventually succumbs to his or her injuries (e.g., in a car accident case). Whatever the situation, if a defendant dies during a lawsuit, this may affect the outcome of the case.

For the most part, a personal injury lawsuit will not get dismissed in Colorado just because the defendant dies. Instead, the claim will continue against the defendant’s estate. However, the deceased person must be formally substituted by his or her estate or personal representative. One of the parties involved must submit a motion to substitute in a timely manner.

In a criminal case against a defendant, on the other hand, the courts will generally dismiss the case if the defendant dies while it is still processing. Unlike civil liability, criminal liability in Colorado does not survive death or pass to the defendant’s estate.

How to Submit a Motion to Substitute in Colorado

Colorado Rules of Civil Procedure, Rule 25, states: If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party.

Under this rule, either party involved in a civil lawsuit may file a motion for substitution of a deceased defendant for another party. To submit this motion, you must file a written request with the court. The request must clearly state the reason for the substitution (the death of the defendant) and include a proposed new defendant. 

You may need to include proof of the defendant’s death, such as a death certificate, with your motion. The written document must be submitted to the courthouse, with a copy being served to all other parties involved. Filing a motion for substitution of a defendant must be done no later than 91 days after the defendant’s death for the courts to agree to the change.

Does the Death of the Defendant Affect a Lawsuit?

The answer to this question depends on the case. If either side of the case relied heavily on information or testimony that only the defendant could provide, this could potentially make it more difficult to prove the case. However, most personal injury cases involve other forms of evidence, such as records and documents, eyewitness accounts, photos, videos, and expert testimony.

One notable difference is that a case against a deceased defendant cannot result in any punitive damages. Colorado Revised Statutes § 13-20-101 states that when a legal action survives the death of the defendant, punitive damages shall not be awarded. This is because these damages are meant to punish the defendant; therefore, it would not be just to have the responsibility pass to someone else.

Beyond these potential issues, the death of a defendant will not significantly affect a civil lawsuit. The claim can continue on as normal against a new defendant – likely, the deceased person’s estate. If you need assistance submitting a motion to substitute or continuing your claim in Colorado after the death of a defendant, contact our Denver injury attorneys at Fang Accident Lawyers for a free consultation.