Litigation can be a slow process and may continue for years before its resolution. What happens if a party to litigation passes away while it is ongoing? If you are involved in a lawsuit and the other party dies or if you are the estate representative of the person who passed away, there are several important facts you should understand.

1. The cause of action survives (most of the time).The vast majority of claims survive the death of a party. There are exceptions where the death does terminate an action, including dissolution of marriage.
2. Automatic stay of proceedings.Courts will automatically stay proceedings until an estate representative is appointed. The status quo is maintained during that time. If any orders are entered between the death of a party and appointment of a representative, they are null and void. This is because death deprives the Court of jurisdiction over the claim until the substitution of the estate representative occurs.
3. Estate representative becomes the party. The Court may on its own substitute the estate representative as a party for the deceased individual. If the Court does not act on its own, the estate representative must act, making a motion for substitution under New York Civil Practice Law and Rules § 1021. An estate representative is required to make the motion in a “reasonable time.” If the representative fails to do so, the Court may dismiss the action.

If for some reason no estate representative is appointed, the other party to the action has standing under New York Surrogates Court Procedure Act § 1002 to petition the Court for the appointment of an administrator to act as representative of the estate.

4. Evidentiary changes.New York is one of the few states which has a “Dead Man’s Statute,” that precludes an interested party from testifying regarding a transaction or communication with the deceased. The practical implication of this is that it may make it much more difficult for a party to meet its burden of proof in litigation. However, you can use deposition testimony of the deceased if it exists. While generally, there are restrictions on when deposition testimony can be used at trial, there is an exception where a witness is unavailable, including as a result of death.

Note there may be additional impacts of the death of a charged party in criminal law matters.

In recognition of these serious impacts, a party who is older than 70 can move for a trial preference, which moves the case to the head of the trial docket.

If you are appointed as an estate representative for a decedent who was involved in litigation, consult qualified counsel about how to handle the matter.