Injured By Someone Who Has Since Died Or Is Incapacitated? You Can Still File A Personal Injury Lawsuit

27 August 2021
 Categories: Law, Blog


Did you know that it is possible to sue a dead person or someone who is mentally incapacitated? This may sound morbid, but it's an important discussion to have. Whether you were in the middle of a lawsuit before the defendant passed away or you were considering filing a personal injury lawsuit against someone who is currently severely ill, you can and should still file a lawsuit if you think you have a good case.

Here's what may be involved if you would like to move forward in filing a personal injury lawsuit against someone who has died after they've caused you injuries or harmed you in some way.

Statute of Limitations

Each state has different statutes of limitations, which are deadlines set by law that determine the length of time in which you are allowed to take legal action against someone in civil court for a personal injury lawsuit. The clock usually starts ticking the moment you are injured, such as in a car accident case, but there can be rare exceptions, such as if you were in a lengthy coma after a car accident.

Therefore, don't wait to file a lawsuit if you feel you have a good case. While it may seem unethical to sue someone who is fighting for their life in an ICU, waiting to see if the person recovers before you file a lawsuit may cause you to exceed the statute of limitations. Your personal injury lawyer will be able to tell you what the statute of limitations are for your case in your state.

Representative or Guardian Appointed by Court 

If the person you want to file a personal injury lawsuit against has passed away, they will be referred to as the decedent and you will be suing their estate. The estate will already have a representative, which is usually a close family member or a lawyer. This individual will be the one representing the decedent on the behalf of the estate.

If the individual you are going to file a lawsuit against is currently incapacitated and does not have the mental capacity to make decisions, a judge can award the person with a court-appointed guardian or conservator who will be given a durable power of attorney to act on the person's behalf in a personal injury lawsuit against them. 

Given that this process of appointing someone can take time, it's yet another reason to not wait in filing a lawsuit, particularly if you are already close to the statute of limitations date. 

Settling Out of Court & Collecting Against the Estate

Depending on the facts of the case and what the decedent's or defendant's representative or guardian is privy to, they may be willing to settle out of court, which may make the process a bit easier on you if you are still suffering from the injuries caused by the person who harmed you. Speak with your personal injury lawyer for more information on whether or not you should accept any settlement or if you should go ahead with court proceedings. 

One key difference between suing a living individual versus suing the estate of a decedent is the ability to collect on a judgment from the estate by filing the judgment with the county office that handles probate of estates. Probate is the legal process of determining the validity of a will and distributing assets of the estate to creditors and heirs. If there is no will, the court will appoint someone to handle the assets in a similar manner. Should you win the lawsuit, you will be listed as a creditor in the probate documentation. 

Contact a law firm like the Law Office of Robert Karwin to learn more.