What Happens If The Defendant In My Personal Injury Lawsuit Is Dead?
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What Happens if the Defendant in My Personal Injury Lawsuit Is Dead?

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We often talk about “wrongful death” lawsuits where the estate of a deceased individual may sue the persons legally responsible for that death. But what about the opposite scenario? In other words, what happens if you want to file a personal injury lawsuit against a defendant who has died? Can you even bring such a claim, or does any potential judgment die with the individual?

Let’s start with that last question first. To put it simply, a lawsuit–or even a potential lawsuit–does not die with the defendant. Florida law is quite clear on this point. So for instance, let’s say you are injured in a car accident caused by a negligent driver. If that driver was themselves killed in the accident, you could still file a personal injury lawsuit and potentially recover damages.

The Role of a Probate Estate in Personal Injury Cases

But who are you actually suing? You cannot actually sue a dead person. What you can do, however, is sue the personal representative of their estate. The personal representative–sometimes referred to as the “executor”–is the person legally responsible for gathering the assets of the deceased person and paying and valid debts against them. Such debts can include personal injury claims, even those that have yet to be heard in court.

Now, this means that if you want to file a new personal injury lawsuit against a deceased defendant, you must typically first present a claim against their estate in probate court. As far as the probate court is concerned, you are simply another potential creditor of the estate. Indeed, if the personal representative is already aware of your potential lawsuit, they have a legal duty to notify you that probate proceedings have begun.

Now what if you actually filed your personal injury lawsuit against the person before they died? In that scenario, you will need to “substitute” the personal representative for the deceased person as a defendant in the case. If no personal representative has been appointed, the court overseeing the personal injury litigation may appoint an “attorney ad litem” to serve as a temporary substitute. Keep in mind, however, that as the plaintiff pursuing a personal injury case, you have a duty to keep the court informed about a defendant’s death and take timely action to substitute a proper defendant.

Speak with a Delray Beach, Florida, Personal Injury Lawyer Today

One final thing to keep in mind: Even if you successfully pursue a personal injury lawsuit against a deceased individual, their probate estate may not have any assets with which to pay you. Florida law determines the order of priority for an estate’s creditors, and individuals who have personal injury judgments against the deceased are often at the bottom of the list. That said, there may still be insurance coverage available to pay at least some of your damages.

If you need legal advice or representation in connection with any personal injury matter, contact the Fort Lauderdale car accident attorneys at the Leifer Law Firm today to schedule a consultation.

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