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Kevin O'Flaherty

In this article, we explain what happens if the plaintiff or defendant in a lawsuit dies before the case is resolved. We will answer the following questions:

  • What is the Illinois Survival Act?
  • What happens to a lawsuit if the plaintiff dies?
  • What happens to a lawsuit if the defendant dies?
  • What types of lawsuits will not continue upon the death of one of the parties?
  • What happens if an action was not filed before the death of an involved party?
  • What happens if an involved party dies after an appeal has been filed but before the court of appeals hands down a decision?

Lawsuits can stretch out to months or even years depending on the offense, the number of people involved, the profile of the case, etc, etc. Beyond the time associated with the specifics of a given case, the pace for a lawsuit to wind its way through the court process can be plodding and downright slug-like at times. Asking the question, “What happens if one party dies during a lawsuit?” doesn’t seem so unrealistic given the possible time frame of a given case. For the most part, a lawsuit does not end when a party passes away. Instead, the court appoints a personal representative or executor to manage the deceased person’s estate, with that representative standing in for the person’s estate during the existing lawsuit and any future litigation.

What is the Illinois Survival Act?

The Survival Act, which is part of the Illinois Probate Act, effectively allows the decedent’s estate to preserve causes of action that occurred and continued to occur before the death of the plaintiff. Prior to the creation of the Survival Act, outside of wrongful death lawsuits,  most types of causes of action died with the plaintiff. The Survival Act allows the decedent’s estate to continue a lawsuit against the defendant and recover the same compensatory damages the plaintiff would have been entitled to prior to his or her death. 

What Happens To a Lawsuit When the Plaintiff Dies?

In the event, the plaintiff dies in the middle of a lawsuit the decedent’s estate and the assigned personal representative can step in and continue litigation on behalf of the decedent under the Illinois Survival Act. Most types of offenses can be continued under the Survival Act, such as negligence, medical malpractice, personal injury (compensatory up to the time of death), etc.

The Survival Act does not allow for the creation of a new cause of action, only the continuance of an existing cause. In the case of personal injury and eventual death of the plaintiff, the plaintiff would be entitled to compensatory damages leading up to the time of death, and then the defendant may have a wrongful death suit on his hands depending on the statute of limitations under the Illinois Wrongful Death Act. If the plaintiff died for reasons other than the personal injury then the damages awarded stop at the time of death.

What Happens to a Lawsuit When the Defendant Dies?

One might think that a lawsuit would simply end if the defendant dies during the litigation process. After all, what more punishment could come to the defendant? But there is still the matter of the plaintiff’s compensation. In most cases, the lawsuit will continue against the decedent’s estate.

Depending on the assets available and the debt owed by the defendant’s estate and, once a ruling is handed down, whatever compensatory damages are awarded to the plaintiff will come out of the decedent’s estate. If no suit has been filed yet it can still be done as long as it is within the Illinois statute of limitations for that particular claim

What Types of Lawsuits Are Exempt From The Illinois Survival Act?

Not all lawsuits can continue forward in the event that one of the parties passes away. Below is a list of the actions that are exempt from the Illinois Survival Act, and cannot be brought against a defendant in the event of the death of the plaintiff or defendant:

  • Libel and Slander
  • False Imprisonment
  • Malicious Prosecution
  • Invasion of Privacy

What Happens if an Action Has Not Been Filed Before the Death of An Involved Party?

Generally, the Illinois Survival Act allows for the filing of a lawsuit against another party by the plaintiff’s estate and the required defense against the lawsuit by the defendant’s estate, as long as the filing is within the Illinois statute of limitations for the particular action. 

What happens if an involved party dies after an appeal has been filed but before the court of appeals hands down a decision?

If an appeal has been filed the appeal will survive the death of the appealing party—unless it is one of the causes of actions exempt under the Illinois Survival Law—and be taken up by the decedent’s estate. This holds true whether the appeal has yet to be ruled on by the court of appeals or supreme court or if a judgment has been handed down, reversing the appeal and sending the case back for a new trial.

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.


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