It depends. Generally, a deceased person cannot be joined as a party to a lawsuit in their individual capacity. However, the estate of the deceased person, managed by a personal representative, can be joined as a party to a lawsuit. Ultimately, the circumstances under which a deceased person can be joined as a party to a lawsuit depend on the type of claim and the applicable limitations of California law.
How to Join a Deceased Person in a Lawsuit
California law makes clear that a deceased person cannot be joined as a party to a lawsuit in their individual capacity. Similarly, a deceased person’s estate cannot, itself, be joined as party to a lawsuit. (1 Cal. Affirmative Def. § 17:4 (2d ed.).) Legally, an estate is merely the sum of the deceased person’s total assets and liabilities. (Id.) An estate cannot be sued because it is not a person or a legal entity. (Id.)
Ultimately, the process for joining a deceased person as a party to a lawsuit depends on whether the court has appointed the deceased person’s estate a personal representative. A “personal representative” is a court appointed individual who is responsible for managing the deceased person’s estate. (Prob. Code, § 9820.)
Can you bring a lawsuit against a deceased person’s personal representative?
As a rule, if a deceased person must be joined as a party to a lawsuit, and the individual bringing the lawsuit (the “plaintiff”) knows of the estate’s personal representative, the plaintiff must join the personal representative as a defendant. (CCP § 762.030.)
It follows that, a personal representative may bring and defend lawsuits on behalf of the estate which they represent. (Prob. Code, § 9820, subd. (b); Miller v. Campbell, Warburton, Fitzsimmons, Smit, Mendel & Pastore (2008) 162 Cal.App.4th 1331, 1339-1340 (Miller).) However, personal representatives may only bring or defend lawsuits on the estate’s behalf. (Miller, 162 Cal.App.4th at 1340.) This means that when a personal representative is involved in a lawsuit on behalf of the estate, they are acting in their representative capacity, making their personal assets or claims unreachable. (Id.) In fact, the court’s appointment prohibits the personal representative from prioritizing their personal interests at the estate’s expense.
If, however, the individual bringing the lawsuit knows or believes the party is dead, but does not know of a personal representative, California law allows the individual to sue the deceased party by suing the deceased person’s successors. (CCP § 762.030, subd. (b).) The Complaint must also be accompanied by an affidavit stating the deceased person’s lack of a personal representative. (Id.)
What if a Party Dies During the Lawsuit?
Under California law, courts cannot render a judgment, for or against, a deceased person in an on-going lawsuit without substituting the deceased person’s personal representative into the lawsuit first.
California Code of Civil Procedure section 377.20, subdivision (a) specifically states that a civil cause of action survives the death of the defendant, so long as the claim is brought within the applicable statute of limitations period and the claim survives the party’s death. (CCP §§ 377.40, 377.41; Swartfager v. Wells (1942) 53 Cal.App.3d 522, 538.) Thus, upon the proper motion, courts must allow a pending lawsuit against the deceased person, which survives their death, to continue against the decedent’s personal representative or successor in interest. (CCP § 377.41.)
When the cause of action survives death, the plaintiff can recover nearly all the same damages they would have recovered against the deceased person if the deceased person had lived to the end of the lawsuit. (CCP § 377.42 [plaintiff cannot recover punitive damages, exemplary damages, or damages available under California Civil Code section 3294].)
Additionally, the cause of action must survive the party’s death. Generally, a cause of action that arises from violations of an individual’s personal rights, such as torts like defamation, do not survive the party’s death. (Singley v. Bigelow (1930) 108 Cal.App. 436, 444 citing Harding v. Liberty Hospital (1918) 177 Cal. 520.) In comparison, causes of action related to real property typically do survive the death of the wrongdoer. (Singley v. Bigelow, 108 Cal.App. at 444-445.)
For example, a cause of action to quiet title to real property survives a defendant’s death. (see Swartfager v. Wells, 53 Cal.App.3d at 538.) Likewise, causes of action alleging fraud and deceit in a real property transaction survive either party’s death. (Henigan v. Yolo Fliers Club (1930) 208 Cal. 697, 699-700.) And actions to recover damages for trespass to real property committed by a party during their lifetime, survive the party’s death and may be pursued against the estate’s personal representative. (see Haight v. Green (1861) 19 Cal. 113.)
Causes of action related to real property often survive a party’s death because they are rooted in property rights, and unlike personal rights, harm to property rights often continues after a party’s death.
What is an Example?
“Shawn” and “Julie” are siblings who inherited their family home. After years of disagreements, Julie decides to consult a lawyer about pursuing a lawsuit for partition against Shawn. Unfortunately, Shawn dies before Julie can file her lawsuit. Shawn died without a will, so as part of the probate of Shawn’s estate, the court appoints Patty as his personal representative.
Because Julie still co-owns the family home with Shawn’s Estate, Julie can still file a lawsuit to partition the family home against Shawn; however, Julie cannot name Shawn, the individual, as a defendant. Instead, Julie must file her lawsuit against Patty, as the personal representative of Shawn’s Estate because she has knowledge of Patty’s appointment. Now, Julie can pursue her action for partition against Shawn through Patty.
Meanwhile, Patty is heavily involved in the partition lawsuit but, Julie cannot recover any costs against Patty personally. All of Julie’s recovery will be made directly from Shawn’s estate. In the end, Julie will be able to partition the family home while Patty’s personal assets and liabilities are out of reach of the partition’s action.
Conclusion
In sum, a deceased person’s estate may only be joined as a party to a lawsuit if two main requirements are met: (1) the deceased person’s personal representative is named as a party to the lawsuit; and (2) the cause of action survives the party’s death, regardless of whether the death occurs before or during the lawsuit. If the lawsuit involves real property, the cause of action likely survives the party’s death, but complex procedural requirements must be met to continue the lawsuit. At Underwood Law, our partition attorneys can help you navigate your action efficiently and with care. We are here to help.
