February 25, 2002
PROCEDURES FOLLOWING DEATH OF A CIVIL DEFENDANT
By: George Coppolo, Chief Attorney
You asked what procedures must be followed when a civil defendant dies, what duties the administrator or executor has, and whether there is a time frame for substituting the decedent's estate for the decedent in the lawsuit. Our office is not authorized to give legal opinions and this report should not be considered one.
A lawsuit does not terminate because a party dies; it may be continued by or against the decedent's executor or administrator (CGS § 52-599 (b)). (An executor is responsible for handling the estate of someone who dies with a valid will; an administrator is responsible for handling the estate of someone who dies without a valid will.)
If a defendant in a lawsuit dies, the person who filed the lawsuit (plaintiff), may apply to the court in which the action is pending for an order to substitute the decedent' s executor or administrator in the place of the decedent. When the executor or administrator is served the action may proceed (CGS § 52-599).
This statute gives a plaintiff an absolute right to have the administrator or executor made a defendant within one year after the decedent's death. Thereafter, it is within the court's power to do so if good cause is shown for the delay (Schoolhouse Corp. v. Wood,43 Conn. App. 586, cert. den. 240 Conn. 913 (1996)).
When determining whether good cause excused an untimely motion to substitute the deceased defendant with his executor or administrator, the court must review the intent and reasons given by the plaintiff for not moving to substitute within the statutorily mandated one-year period, and determine if those reasons amounted to good cause (Schoolhouse Corp. v. Wood, 43 Conn. App. 586, cert. den., 24 Conn.913 (1996)). For example, the plaintiff's delay in seeking substitution would be excused for good cause if (1) all parties were disabled by sickness, (2) the plaintiff resided far away from the defendant's domicile, or had not heard of his death, or (3) the plaintiff waited to seek substitution because the defendant's attorney had asked him not to file papers with the court and had assured the plaintiff that the debt would be paid. But neglect, indifference, disregard of plainly applicable statutory authority, and self-created hardship do not constitute good cause (Schoolhouse Corp. v. Wood.).
Neither the executor nor administrator is required to directly notify the court in which the lawsuit is pending about the death. Nor is either required to notify the attorney or attorneys representing those who filed a lawsuit against the defendant. The law requires the probate court to notify people with claims against the deceased of the death by newspaper notice published at least once within 14 days after the executor or administrator is appointed (CGS §45a-230c).