Civil litigation in California often presents attorneys with numerous procedural challenges, but few are as unexpected as the death of a party during litigation. What happens if a plaintiff or defendant passes away while a case is still pending?
The answer lies within the intersection of the California Code of Civil Procedure and the Probate Code. Yet, even seasoned attorneys can find navigating these statutes complex. The following overview provides a structured framework for analyzing survival claims when a litigant dies.

Step 1: Determine Whether the Deceased Was a Plaintiff or Defendant

The applicable procedure depends on which side of the case the deceased occupied. When a plaintiff dies, the governing provisions are found in California Code of Civil Procedure, Part 2, Title 3, Article 3. When a defendant dies, Article 4 applies. These sections apply to actions filed or maintained on or after January 1, 1993, regardless of when the death occurred. 【C.C.P. §§ 377.35, 377.43】

Step 2: Identify Whether the Claim Survives the Death

The next consideration is whether the underlying cause of action “survives” the decedent's death. Historically, California law distinguished between survivable and non-survivable claims, but that distinction was eliminated in 1961. Modern survivability rules were codified in 1992.

Under the current law, a lawsuit does not automatically terminate upon a party's death if the claim itself survives. 【C.C.P. §§ 377.20–377.21】 In other words, the plaintiff's passing does not necessarily extinguish the litigation—certain claims may continue through the decedent's representative or successor in interest, provided statutory deadlines are met.

Examples of Claims That Survive Death:

• Actions to void transfers obtained through fraud or undue influence【Estate of Denton (1971) 17 Cal.App.3d 1070】

• Creditor's claims and actions to recover property belonging to the estate【King v. Wilson (1950) 96 Cal.App.2d 212】

• Elder abuse claims【Welf. & Inst. Code § 15657.3】

• Civil rights claims under 42 U.S.C. § 1983【Cotta v. County of Kings (E.D. Cal. 2015) 79 F.Supp.3d 1148】

• Certain post-judgment marital dissolution issues (e.g., support, property division, attorney's fees)【In re Marriage of Drake (1997) 53 Cal.App.4th 1139】

Examples of Claims That Do Not Survive Death:

• Pending marital dissolution proceedings【id.】

• Invasion of privacy claims【Hendrickson v. California Newspapers, Inc. (1975) 48 Cal.App.3d 59】

• Claims for pain and suffering, emotional distress, or disfigurement damages【C.C.P. § 377.34】

A key distinction must also be made between a survival action and a wrongful death claim. A survival action (C.C.P. §§ 377.30 et seq.) is based on a cause of action that belonged to the decedent during life and is continued by the decedent's representative or successor. A wrongful death claim, by contrast, belongs to the heirs or dependents of the deceased and compensates them for their own losses resulting from the death【C.C.P. § 377.60; Adams v. Superior Court (2011) 196 Cal.App.4th 71】.

Step 3: Determine Who Has Standing to Continue the Case

If a plaintiff dies, any surviving claim passes to their legal successor in interest. The case may be prosecuted either by the personal representative of the estate (appointed by the probate court) or, if none has been appointed, by the successor in interest【C.C.P. § 377.30】.

A “successor in interest” is defined as a beneficiary or other person who inherits or succeeds to the decedent's property or legal claim【C.C.P. § 377.11】. In practice, this may include named heirs under a will or trust, or statutory heirs under intestate succession laws【Prob. Code §§ 7000–7001】.
When possible, best practice is to have the personal representative—not the successor in interest—litigate the case, as it provides clearer authority and avoids standing challenges.

Step 4: How to Substitute a Representative After the Plaintiff's Death

When a plaintiff dies while the case is pending, the action may continue through a court-approved substitution. Upon motion, the court “shall allow” the action to proceed in the name of the decedent's personal representative or successor in interest【C.C.P. § 377.31】.

This motion must be supported by a sworn declaration that complies with C.C.P. § 377.32, detailing facts such as the decedent's death, relationship to the movant, and confirmation that no other personal representative has been appointed.

If a personal representative is later appointed through probate, that person will generally take over the litigation. Timing is critical: a survival action must be filed within six months of the decedent's death or within the original limitations period that would have applied if the decedent were still alive—whichever is later【C.C.P. § 366.1】.

Courts may also issue appropriate orders to ensure fairness, such as appointing a special administrator or guardian ad litem to represent the estate【C.C.P. § 377.33】.

Step 5: Determine What Damages Are Recoverable

In survival actions, recoverable damages are limited to the harm the decedent actually suffered before death. This includes any financial loss, property damage, or penalties that could have been recovered had the decedent lived—but not damages for pain, suffering, or emotional distress【C.C.P. § 377.34】..

Conclusion

When a party dies during litigation, quick and informed action is essential. A decedent's claims may continue, but the process involves navigating both civil and probate procedures. Understanding who has standing, what claims survive, and what deadlines apply can preserve valuable rights that might otherwise lapse.

Key Statutes and Authorities:
Cal. Code Civ. Proc. §§ 366.1, 377.10–377.43; Cal. Prob. Code §§ 7000–7001; Estate of Denton (1971) 17 Cal.App.3d 1070; In re Marriage of Drake (1997) 53 Cal.App.4th 1139; Adams v. Superior Court (2011) 196 Cal.App.4th 71.