What Happens to a Lawsuit if a Plaintiff Dies?

October 13, 2021

A dead person cannot file a lawsuit. But what happens when a person dies after a lawsuit has been filed but not resolved? When a person dies, the legal claim passes to his designated heirs. Practically speaking, this means the personal representative appointed by the probate court to administer the estate is also appointed to act on the decedent’s behalf in the pending lawsuit.

The claim becomes an asset of the estate. The legal fees are paid by the probate estate and the decision to settle or not settle the case is made by the personal representative. The personal representative has a fiduciary duty to make decisions that are in the best interests of the estate; therefore, any decisions made pertaining to the lawsuit are also held to this fiduciary standard.

Mass Torts/Personal Injury

Maryland law allows a mass tort or other personal injury lawsuit to exist if the injured person dies. These are referred to as “survival actions”. The intention behind the law allowing these cases to proceed is that a person who commits an action that causes harm should not be off the hook because the offended person passes away.

These survival actions should not be confused with wrongful death actions. A wrongful death case allows eligible survivors to sue for losses they have experienced. These eligible survivors include close family members like parents, spouses or minor children. In contrast, a survival action allows someone to start or continue a lawsuit in place of the deceased plaintiff. The damages the estate potentially may receive are the same that the plaintiff would have received if he were still alive. When a plaintiff dies, is it a wrongful death suit or a survival action? That depends on how the plaintiff dies.

If the plaintiff’s cause of death is unrelated to the underlying personal injury case, then there is no wrongful death claim. This would constitute a survival action.

While a personal representative is allowed to continue the lawsuit, damages are capped as of the time of death. Any calculations for lost income or pain and suffering will be limited by the date of the plaintiff’s passing.

In the rare situations where the defendant’s actions not only injure the plaintiff, but eventually cause the plaintiff’s death, there may be both a wrongful death suit and a survival action. The estate of the deceased plaintiff will bring about the survival action and recover whatever amount that would have been owed to the plaintiff had he lived. Eligible survivors will bring the wrongful death cause of action and recover damages based on that.


If a couple files for divorce and one of them passes away before the divorce is finalized, the court will dismiss the action as it pertains to the absolute divorce. Once someone dies, there is no need for the divorce. The action will remain in regards to equitable distribution and child custody. The court will grant custody to the surviving party, unless there is a reason that it would not be in the child’s best interests.

The equitable distribution action is where things get more complicated. The matter is now between the surviving spouse and the decedent’s heirs. In many cases, if a will has not been updated or if there is no will at all, the surviving spouse ends up inheriting from the decedent. This may contradict what the decedent would have wanted, but without proper legal planning, these unintended results occur.

Criminal Matters

If someone is charged with a crime and passes away before the matter is resolved in court, the district attorney’s office will voluntarily dismiss the charges. There is no point in spending taxpayer’s dollars to prosecute a crime without a living defendant to face the consequences.

Dealing with estate administration issues can be very complicated when a lawsuit is involved. Contact the experienced probate attorneys at Stouffer Legal in the Baltimore area for assistance in matters like these. You can schedule an appointment by calling us at (443) 470-3599, emailing us at office@stoufferlegal.com, or register for an upcoming free webinar using the link below:






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