One thing that people don’t talk about is that in addition to the grief that comes with losing a loved one, there is a lot of—well—paperwork. The reality is that when someone dies, they leave behind an entire life.
One of the things that may be left behind is a personal injury lawsuit.
This can compound the grief with confusion for family members: What happens to the lawsuit? Can it still go forward? Does the case simply end? Or, if the defendant dies, does that terminate the proceedings?
The short answer is: No, the case doesn’t have to end. Most personal injury claims can continue even after the plaintiff dies—though exactly how they continue depends on whether the death was related to the original injury.
This guide walks you through what happens when a plaintiff dies during litigation, how the case can proceed, and what family members need to know during this difficult time.
Can a personal injury case continue after the plaintiff dies?
Yes. The injured person’s right to sue doesn’t end just because they passed away.
The lawsuit can continue in one of two forms:
Survival action
A survival action continues the original personal injury lawsuit. It’s not a new claim. It simply allows someone else (usually a family member or the estate’s representative) to step into the shoes of the plaintiff and continue the case.
A survival action can apply in two situations:
- When the plaintiff dies from unrelated causes while their lawsuit is still pending.
- When the plaintiff dies because of the injury, and the estate wants to recover damages for what the plaintiff experienced before their death—such as the pain and suffering they experienced leading up to their death.
Let’s look at a couple of examples:
Maria is in the middle of a personal injury lawsuit after being injured in a car crash. She unexpectedly dies of a heart attack. Her estate can bring a survival action to recover damages related to the crash—like medical bills and lost wages.
John is seriously hurt in a car accident and files a lawsuit. He dies after spending several weeks in the hospital as a result of those injuries. His estate can file a survival action to recover for the pain, suffering, and other losses he endured before he passed. In John’s case, the family may also be able to file a wrongful death claim (explained below).
Wrongful death claim
A wrongful death claim is a new and separate legal action. It’s filed by the surviving family members—not the estate.
The claim is meant to compensate the family members for their personal loss.
Damages in a wrongful death case can include:
- Funeral and burial expenses
- Loss of financial support
- Loss of companionship or parental guidance
- Emotional pain and suffering
A wrongful death claim only applies if the death was caused by the injury at the center of the lawsuit.
Here’s how it might work:
In John’s case above, his wife and children can also bring a wrongful death claim. While the survival action focuses on what John went through before he died, the wrongful death claim focuses on how his death impacted his family—emotionally, financially, and in their day-to-day lives.
Learn more about how to find the right attorney for your wrongful death claim.
What happens first after the plaintiff dies?
When a plaintiff passes away during an ongoing personal injury lawsuit, the first formal step is usually filing a Notice of Death with the court and the other parties.
This document is simple. It doesn’t require detailed information—just the plaintiff’s name, the date of death, and a request to pause the case (called a “stay”) while the next steps are sorted out. This pause gives the court time to appoint someone who can legally continue the lawsuit, such as a personal representative or successor-in-interest.
Although courts are typically understanding, don’t wait too long. Important deadlines—called statutes of limitations—may start running shortly after the death. This is especially true if the case needs to be amended to add new claims (like wrongful death) or new parties (such as surviving family members). In some situations, you may have as little as six months to act.
The Notice of Death is not the lawsuit itself. It’s just a procedural step to inform the court. You’ll still need to amend the existing lawsuit—or in rare cases, file a new one—to continue the case as a survival action or bring a wrongful death claim.
Who can take over the case on the plaintiff’s behalf?
Once the court is notified of the plaintiff’s death, someone must step in to represent the deceased person’s legal interests.
There are typically two options:
- Personal representative: This is the executor or administrator of the plaintiff’s estate, usually appointed by the probate court.
- Successor-in-interest: If there’s no formal probate proceeding, a family member (often a spouse or adult child) can be named to continue the case.
Either option requires filing a declaration with the court. This document confirms the person’s legal authority to act and includes certain statements required by state law. A copy of the death certificate (with the Social Security number redacted) must also be included.
In some situations, if the plaintiff’s spouse is elderly or unable to manage the case, another family member (such as an adult child) can be authorized to act on their behalf. This is done by filing dual declarations—one from the spouse and one from the family member.
If the case will also include a wrongful death claim (because the injury caused the death), additional plaintiffs—such as children or other legal heirs—may also need to be added to the lawsuit.
Do you have to start the case over after the plaintiff dies?
No. The case does not need to start over when the plaintiff dies, but the original complaint does need to be amended to:
- Substitute the personal representative or successor-in-interest for the deceased plaintiff
- Add any new plaintiffs who are asserting wrongful death claims
- Update the language in the complaint to reflect the new claims and parties involved
This is done through a motion to amend, which is typically granted by the court as long as it’s done promptly and doesn’t cause unfair delay or surprise to the defense.
Attorneys handle most of the paperwork, but family members may be asked to sign declarations, provide a copy of the death certificate, and confirm whether probate has been opened.
It’s important to keep in mind that these are procedural changes—the heart of the case remains the same. The goal is still to hold the at-fault party accountable and recover compensation for the harm caused.
If you’re a family member of someone who died during a personal injury lawsuit, the legal process is probably the last thing on your mind—but it’s important to understand that the case can still move forward and help secure financial relief for your family.
A qualified personal injury attorney can walk you through the steps, make sure nothing falls through the cracks, and help you determine whether a wrongful death claim should be added to the case.
What Happens If the Defendant Dies During a Lawsuit?
Learn what happens when a defendant dies during a lawsuit, and how your case can still move forward despite the disruption.