Generally under the common law, a lawsuit was thought to automatically abate on the death of a party. However, whether the cause of action abated depended on whether or not the lawsuit was considered personal to the parties. For example, contract and property cases were thought to involve issues separate from the parties themselves and did not necessarily abate on the death of a party. On the other hand, personal injury cases including injuries to the person as well as cases of libel, slander, and malicious prosecution were considered personal and did abate at death of the party.
Many states today have statutes that permit the revival of an action that was pending when a party died. In the usual course, an executor or administrator is substituted for the deceased party and the lawsuit continues. A lawsuit may not be revived unless the underlying cause of action continues to have a legal existence after the party’s death. Revival statutes vary from state to state, but today most lawsuits do not abate due to the death of the party.
This general rule regarding abatement however does not apply to matrimonial actions. A lawsuit for divorce or separation is considered entirely personal and therefore cannot be maintained after the death of a party. Different states do make exceptions to this rule in order to settle certain questions of property ownership. An action for the annulment of a marriage after the death of an innocent spouse may be revived by the deceased spouse’s personal representative if it is clear that the marriage was induced by fraud and the perpetrator of the fraud would inherit property to which he or she would otherwise not be entitled.
The general rule is that suits and actions must be prosecuted by and against living parties. If a person against whom a personal action may be brought dies before suit papers naming such person as defendant have been filed with the court, then such suit papers may be amended to substitute the decedent’s personal representative as party defendant.[i]
Enactments setting up procedure for revival seeks to prevent the arbitrary cessation of a proceeding where the cause of action survives and provide for substitution of the personal representative or other proper party and the continuation of the matter in that party’s name. Upon the death of an indispensable party, the action abates until the deceased party’s estate, or other appropriate legal representative, has been substituted.[ii]
A deceased person cannot be a party to a legal proceeding and the effect of the death is to suspend the action as to the decedent until his or her legal representative is substituted as a party. A deceased person cannot be a party to legal proceedings. “While the death of a party does not abate a pending action where the cause of action survives . . . , nevertheless the effect of the death is to suspend the action as to the decedent until someone is substituted for the decedent as a party to the proceedings. Until someone is properly substituted as a party after the action is thus suspended, further proceedings in the case are void as to the decedent.”[iii]
In considering the matter of the abatement of an action by the death of a party, as well as the survival and revival of the action, there is a clear difference between the action and the cause of action; a cause of action may survive although a particular action based on it is abated by the death of a party.
[i] Estate of James v. Peyton, 277 Va. 443, 451 (Va. 2009)
[ii] Campbell v. Napoli, 786 So. 2d 1232 (Fla. Dist. Ct. App. 2d Dist. 2001)
[iii] Clark v. Masters, 297 Ga. App. 794 (Ga. Ct. App. 2009)