What happens when a plaintiff dies during lawsuit? Arizona law requires that certain steps be taken to continue the claim in the event of a party’s death, on behalf of either the deceased plaintiff or defendant.
Unfortunately, attorneys find themselves in this situation from time to time. At Negretti & Associates, we’ve had to deal with this situation on numerous occasions. We have had plaintiffs — our clients — pass away during our pursuit of their claim. We have also experienced defendants passing away while we are pursuing a claim against them. When either instance transpires, a case is left in a peculiar state.
Here, we’ll provide an overview of how Arizona law addresses situations in which the plaintiff or defendant passes away before a case is resolved.
Rule 25 of Arizona Rules of Civil Procedure
Rule 25 of the Arizona Rules of Civil Procedure states: “If a party dies and the claim is not extinguished, the court may order substitution of the proper party. Any party may file a motion to substitute. If the motion is not made within 90 days after the statement noting the death is served, the court must dismiss the claims by or against the decedent.” See Ariz. R. Civ. P Rule 25(a).
Ariz. R. Civ. P. Rule 25 goes onto to state that the decedents’ personal representative may be substituted as a plaintiff or defendant and that the action shall proceed in favor or against the remaining parties.
There is a lot to unpack in Rule 25 of the Arizona Rules of Civil Procedure. Read the statute carefully to understand the requirements and the timeline you have to operate under.
Barragan v. Superior Court 469
In addition, there is Arizona case law on point to address with this situation. In Barragan v. Superior Court 469 P.2d 92 (Ariz. App. 1970), the Court further clarified Rule 25 by holding that a petitioner may open probate to have a special administrator appointed for the purpose of later substituting a personal representative for the estate of the decedent.
Questions to Consider
When a plaintiff or defendant dies during a lawsuit, the situation can spider-out in countless ways, causing everyone involved in a case unnecessary stress.
Questions that an attorney might want to consider include:
- Did the plaintiff or defendant die before you filed your lawsuit?
- What if the case was settled prior to the death of one of the parties?
- If you are an attorney representing a client, does your fee agreement allow you to talk to someone on behalf of your client, should he or she die?
- Did the party die after your filed, but prior to serving your lawsuit?
- On the plaintiff’s side, who is entitled to any proceeds that flow from resolving the claim?
If you find yourself in a situation where the plaintiff or defendant has died while a claim is in process, but you still have questions, give Negretti & Associates a call. We will walk you through the process to ensure that your claim can continue forward. You can reach as at (602) 531-3911 in Arizona. You can also contact us online or send us a text.