What Happens to a Lawsuit When the Defendant Dies?

A gavel next to the scales of justice and a law book representing

The process of filing a lawsuit can sometimes take years. During that time, changes can happen that may affect the outcome. One of these situations may include the death of a defendant. 

One such example is the deaths of Matthew Perna¹ and John Steven Anderson². Both these men died while awaiting trial for their roles in the capitol riots. Matthew Perna pleaded guilty to four counts and entered his plea before accepting an offer from the justice department. John Steven Anderson was indicted for assaulting police, theft, and civil disorder when he entered the capitol. 

If a defendant dies during a lawsuit, the case may continue. However, there are essential things to know about continuing the case and what to expect in the process.

Does a Lawsuit Get Dismissed When the Defendant Dies in Florida?

No. A lawsuit doesn’t get dismissed in Florida just because the defendant dies. A claim may continue against that person’s estate.

How Do You Keep a Lawsuit Going After the Defendant Dies?

When the defendant dies during a lawsuit:

  1. The plaintiff may continue the case against the defendant’s estate
  2. There must be a formal substitution of the deceased party to their personal representative

If the defendant dies during a lawsuit, the plaintiff must act to keep the case going. They must make a timely motion to substitute the person’s personal representative as the defendant.

What Is the Law in Florida for What Happens When the Defendant Dies During A Lawsuit?

There are two laws for what happens when a defendant dies during a lawsuit:

  1. A negligence action³ shall be against the wrongdoer’s personal representative if the wrongdoer dies before or after the claim is started.
  2. A cause of action does not die when a defendant dies. A case may be started or continued when a defendant dies.

What Florida Rules of Civil Procedure Apply When a Defendant Dies During a Case?

An important procedural rule is that a plaintiff must know if a defendant dies during litigation. Under the Florida Civil Procedure Rule⁵ if a defendant dies and the plaintiff wants the case to continue, the court may substitute the party. Either the plaintiff can make the motion, or the representatives of the deceased party can motion. The moving party must also prepare a notice of hearing.

How Long Do You Have To Substitute Service if the Defendant Dies?

A motion to substitute service must be made within 90 days after noting the death. Otherwise, the action must be dismissed to the deceased party. It’s crucial to move immediately to preserve the case if the defendant passes away. If there’s no timely substitution request, the other party may ask the court for a dismissal of the claims against them.

Even if there isn’t a personal representative named yet, don’t wait to requestion the substitution⁶. Successors are not always immediately known, or family members may not want to assume the role in the litigation. Even so, the state of the decedent’s estate doesn’t impact the requirement to make a timely request to substitute the defendant in the event of death.

What if a Defendant Dies Before a Lawsuit in Florida?

If the defendant dies before a lawsuit in Florida, the victim may still bring an action against them. Florida law § 46.021 states that a case may be heard against a person after they are deceased. The personal representative of the deceased is the named defendant.

Are There Any Differences in a Florida Personal Injury Claim if the Defendant Is Dead?

Even though a claim can continue after the defendant dies, there is one significant difference. A victim cannot claim punitive damages when the defendant is deceased.

The purpose of punitive damages is to punish the defendant for extremely dangerous or reckless behavior. With the defendant being deceased, there is no way to punish them. Therefore, Florida law prohibits a victim from receiving punitive damages when the defendant is deceased. 

The victim may still claim compensatory damages. The courts have explained that it is unfair to punish the creditors⁷ of the decedent’s estate when the victim has already received compensatory damages. The court’s reason is that it may impose a hardship on the defendant’s family.

Are Treble Damages Available in Florida When the Defendant Is Deceased?

Treble damages may still be claimed in a Florida personal injury case when a defendant is deceased. Even though punitive damages may not be claimed, treble damages⁸ are still available. It’s important as a plaintiff to plead all damages that may be appropriate. 

Treble damages are an available civil remedy when a claim involves theft or exploitation⁹.

Do you have a complicated claim? Our expert attorneys know how to navigate the system. Contact us today for a free consultation.

Bringing A Legal Claim When A Defendant Is Deceased

When a defendant dies before or during a legal proceeding, the victim may still bring a claim by following the proper steps. There are additional challenges to overcome when a defendant is deceased. For example, they can’t testify.

It may be possible to admit prior statements made under oath, but you can’t call them to the witness stand. In addition to deposition testimony, you may use other witnesses to admit statements against interest.¹º

Evidence from the defendant isn’t automatically admissible because they pass away. As personal injury lawyers, it’s essential to be armed with the correct court rules and evidence to present a clear case to the court.

Lawyers for Personal Injury When the Defendant is Deceased

If a defendant dies before or after a personal injury, it can quickly complicate the case. An experienced attorney helps protect you and fights to get the settlement you need. Contact us today for a free consultation. 


¹Fischer, J. (28 February 2022) Pennsylvania man awaiting sentencing in Capitol riot case dies by suicide. WUSA9. Retrieved 2 June 2022.

²Fischer, J. (24 September 2021) St. Augustine man, accused of assaulting police in Capitol tunnel, dies while awaiting trial. WUSA9. Retrieved 2 June 2022.

³FLA. STAT. § 768.20

FLA. STAT. § 46.021

Eusepi v. Magruder Eye Institute, 937 So.2d 795 (Fla. Dist. App. 2006)

⁵Florida Civil Procedure Rule 1.260(a)(1)

Lohr v. Byrd, 522 So. 2d 845 (Fla. 1988).

Snyder v. Bell, 746 So.2d 1096 (Fla. Dist. Ct. App. 1999).

FLA. STAT. § 772.11.

¹ºFLA.STAT § 90.804.