When a Defendant Dies During Litigation: What Plaintiffs Must Do Under California Law

(Part 2 of a Two-Part Series)

This article is the second installment of a two-part series addressing how a party's death affects pending civil litigation in California. The first article examined the procedural steps required when a plaintiff dies during a lawsuit. Here, the focus shifts to a different, but equally complex, scenario: what happens when the defendant dies before the case is resolved.

The death of a defendant does not automatically terminate a lawsuit. However, it triggers strict procedural and probate-related requirements that plaintiffs must follow promptly to preserve their claims.

Step 1: Identifying the Proper Party to Replace the Deceased Defendant

When a defendant passes away, California law limits who may be sued in the decedent's place. Subject to the creditor-claim provisions of the Probate Code, a surviving cause of action may be pursued against either:

1. The decedent's personal representative, or

2. The decedent's successor in interest, where permitted by statute.

A personal representative is the individual or entity formally appointed by the probate court to administer the estate. This includes executors, administrators, administrators with the will annexed, and special administrators.

A successor in interest generally refers to an heir, beneficiary, or other person who inherits a specific asset or cause of action belonging to the decedent's estate.

Correctly identifying, and timely substituting, the proper party is a critical first step. Naming the wrong party can result in delay, dismissal, or forfeiture of the claim.

Step 2: Preserving the Case After the Defendant's Death

If a defendant dies while litigation is already pending, plaintiff's counsel must act swiftly. California law permits a non-abating action to continue against the decedent's personal representative or successor in interest, but only after strict compliance with probate creditor-claim procedures.

A court may not allow the case to proceed against the personal representative unless the plaintiff first proves compliance with Probate Code Part 4, which governs creditor claims against estates. Failure to do so can permanently bar recovery.

Filing a Creditor's Claim Is Mandatory

In addition to seeking substitution in the civil case, the plaintiff must file a creditor's claim in the decedent's probate estate. This filing provides formal notice to both the personal representative and the probate court that the estate faces a pending liability.

Timing is critical. When a creditor's claim is required, it must be filed by the later of:

• Four months after letters of administration are first issued, or

• Sixty days after the creditor receives notice of estate administration.

Once filed, the personal representative may accept the claim, partially accept and partially reject it, or reject it entirely. If no action is taken, the claim is deemed rejected by operation of law after 30 days.

If the claim is rejected, the plaintiff has 90 days to either:

• Move to substitute the personal representative into the pending lawsuit, or

• File a new action to enforce the rejected claim if it is not already fully encompassed by existing litigation.

The One-Year Absolute Deadline

Independently of all other deadlines, California imposes a strict one-year statute of limitations from the date of death for claims against a decedent. This deadline applies even if no probate case has been opened and no personal representative has been appointed.

When no probate proceeding exists, plaintiffs may need to initiate probate themselves to ensure a creditor's claim can be timely filed before this one-year bar expires.

Step 3: Limits on Recoverable Damages

Although most claims survive the defendant's death, California law places clear limits on damages. A plaintiff may recover all damages that would have been available had the defendant lived—except punitive or exemplary damages.

This restriction underscores the importance of understanding not only procedural requirements, but also the practical limitations of recovery once a defendant has died.

Final Thoughts

The death of a defendant does not necessarily end a lawsuit, but it dramatically changes the legal landscape. Plaintiffs must navigate a complex intersection of civil procedure and probate law, often under tight and unforgiving deadlines.

Missed filings, improper substitutions, or untimely creditor claims can completely extinguish otherwise valid causes of action. For that reason, early action and informed strategy are essential. When handled correctly, a plaintiff's rights can still be preserved, and enforced, even after a defendant's death.

Our office is well-versed in navigating these intersecting legal requirements. We routinely assist clients and counsel in preserving claims after the death of a defendant, coordinating probate filings, and ensuring civil actions proceed in full compliance with California law. When time is of the essence and procedural accuracy is critical, our firm is equipped to guide matters through this complex process and protect our clients' rights.

See Related Articles:

When a Defendant Dies During Civil Proceedings: What Happens to the Case?