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What Happens to Your Lawsuit if You die

By Lane V. Erickson, Idaho Estate Planning Attorney

As the premier Idaho estate planning law firm, our goal is to assist each of our clients with each of their particular needs. In most cases, basic estate planning provides all that is necessary to protect our clients as well as their family members and loved ones. This basic estate planning would include a last will and testament, a durable power of attorney, a living will, and a healthcare power of attorney. It could also include one or more trusts depending on the needs of our client. However, we also recognize that not every situation is the same. In fact, a client recently asked me the question of what would happen to a lawsuit that he had started if he were to die. It’s because of this particular question that I decided to post this article.

Our knowledgeable and experienced team of Idaho estate planning attorneys, have helped clients for over 70 years in the creation of their customized estate plans. We have worked with all kinds of clients who are in all kinds of circumstances including dealing with lawsuits. Our team includes partners Randy Budge and Lane Erickson and attorneys Nate Palmer and Dave Bagley. Each of the attorneys on our team have the knowledge and skill necessary to help our clients with even the most intricate estate issues, including dealing with lawsuits.

The purpose of this article is to describe exactly what happens when a client begins a lawsuit and then passes away. Additionally, we discuss whether an estate can file a new lawsuit after a person has passed away. Finally, we discuss the question of whether an estate can be sued while a probate is being completed. While this article is designed to help answer some of your questions, it is not exhaustive. If you have had a family member or loved one pass away and there is an issue with a lawsuit that is either pending or that needs to be filed, we encourage you to contact us so we can answer your specific questions.

Can an Estate Continue a Lawsuit Started by the Decedent

The first question that we will discuss is whether an estate can continue a lawsuit that was started by the decedent before they passed away. Depending on the type and nature of the lawsuit that was started, the short answer is yes, even if the plaintiff dies, the beneficiaries and heirs of the plaintiff’s estate can continue the lawsuit. However, this is the short answer. The real answer has much more detail to it.

Specifically, if a person began a lawsuit in their own name as the plaintiff, and then they passed away, the law in Idaho will require that the name of the plaintiff be changed. There is a period of time after a plaintiff passes away for the estate of the plaintiff to substitute the name of the estate as the plaintiff, in place of the plaintiff’s original name. After this has happened, the litigation can proceed in the name of the estate.

It is important to understand that there are some limitations to the types of claims that can be continued after a plaintiff passes away. For example, a claim for punitive damages is a specific claim made by the person who passed away against the defendant. It is designed to prevent future harm. As a result, if the individual plaintiff passed away, the punitive damage claim will likely come to an end. Similarly, a claim for pain and suffering damages is owned specifically by the individual who suffered the pain. If that is the plaintiff, then the claim for pain and suffering would also come to an end when the plaintiff passes away.

Can an Estate File a new Lawsuit

The next question that comes up is whether an estate can actually file a new lawsuit even after the decedent has passed away. The short answer to this is also yes. A recent new story will help illustrate how this works.

The famous country singer Johnny Cash passed away in September of 2003. His estate included the use of several trusts. Even though this happened some time ago, it was recently reported that The John R. Cash Revocable Trust recently filed suit against an Illinois business for using the names and photographic likenesses of Johnny Cash and his wife June Carter to promote their business.

In a similar way, even when no trusts are involved, during the probate of a deceased person’s estate, the personal representative of the estate “has the same standing to sue and be sued in the courts of this state and the courts of any other jurisdiction as his decedent had immediately prior to death.” Idaho Code 15-3-703(c). In other words, Idaho law specifically empowers a personal representative with the ability to file a new lawsuit if it is necessary and if the decedent would have had the same rights prior to his death.

Can an Estate be Sued by a Party

Finally, clients often asked whether the estate can be sued by a third party. Again, the short answer here is yes.

To illustrate, assume for a moment that the decedent owned farm ground which was mortgaged prior to the decedent’s death. If because of the decedent’s death, the mortgage payments cease to be made, the mortgage holder has the right to begin a foreclosure lawsuit against the estate in order to recover either the full payment of the mortgage, or the missed mortgage payments, or to obtain the land that secures the mortgage. In doing so, the mortgage holder could begin a lawsuit against the estate of the decedent. The mortgage holder would be required to serve the lawsuit on the personal representative of the estate. The personal representative would then have an obligation to defend the estate against the lawsuit.

If you are concerned about what may happen to your lawsuit if you were to die, or if you had a family member or loved one recently passed away who had begun a lawsuit and you have questions, we can help.

Enlist an Idaho Estate Planning Attorney to Help You

Our team of Idaho lawyers can help you with any of your estate planning or probate needs. Whether you are seeking to create or review an estate plan for yourself or would like to help a loved one, we are available to discuss your options and answer your questions at an initial free 30-minute consultation. Call us toll free at 877.232.6101 or 208.232.6101 for a free consultation. You can also email us directly at or stop by our office at 201 East Center Street, Pocatello, Idaho 83201. We will answer your questions and help you solve your Idaho Estate Planning problems.

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