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Seeking Damages in a Civil Case When the Defendant Dies Before Trial

Posted by Timothy J. Ryan | Sep 23, 2018 | 0 Comments

Wrongful death cases could get extremely complicated if the defendant in your case has also died. This is not uncommon, especially in car accident cases where the driver who caused the car accident has also died from his or her injuries. Many people tend to assume that you cannot seek compensation if the defendant passes away. However, this is not true. Even though this process might not be straightforward, an experienced Orange County wrongful death lawyer might be able to guide you through it and help you obtain the compensation you rightfully deserve.

Can You Sue a Deceased Defendant?

Under California law, the short answer is “yes.” The first thing to remember in these cases is to make sure you file your wrongful death lawsuit within the statute of limitations. Essentially, this is the deadline within which you must file your lawsuit. This will help you preserve your claim. In other words, you may not be able to file your wrongful death lawsuit if you fail to do so before the statute of limitations expires. In most situations, the statute of limitations for wrongful death cases in California is two years from the date of death.

There are laws that enable plaintiffs in wrongful death cases to file lawsuits against the estate of a deceased defendant. You may be able to collect compensation from the defendant's auto insurance company, for example. If you were sufficiently compensated by the insurance company, you may not need to take further action. However, if that compensation was not sufficient to cover your losses, you may need to seek compensation from the individual's estate and other collectible assets.

California Probate Code Sections 550 and 552 state that an action against a person who has died, where a plaintiff is seeking recovery of insurance proceeds only, could be filed against the estate of the deceased person. The lawsuit is then served on the insurer and is pursued against the insurance carrier. Under Probate Code 551, a lawsuit may be filed within one year after the statute of limitations expires, if the plaintiff did not know that the defendant had died. In such cases, the plaintiff has one additional year as a “grace period” to file a lawsuit.

Recovering Damages

The law (Probate Code Section 377.42) states that when a wrongful death lawsuit is filed against the estate of a decedent, the plaintiff may recover all damages that could have been recovered had the defendant remained alive, the only exception to that being punitive and exemplary damages.

If you have lost a loved one as a result of someone else's negligence or wrongdoing, you may be able to recover damages even if the defendant has passed away. You need an experienced wrongful death attorney on your side who understands the laws involved and the procedural requirements. It is also very important to keep track of filing deadlines and statute of limitations so you don't lose your right to file a lawsuit and seek the compensation you need and rightfully deserve. 

About the Author

Timothy J. Ryan

Personal injury attorney Timothy J. Ryan has helped California injury victims recover more than $1 Billion since 1981. A passionate consumer advocate, Tim is heavily involved in giving back to his local community via donations and volunteer work.

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