The death of a defendant before a lawsuit is filed or during the pendency of a lawsuit creates very complex issues and is procedurally taxing for any plaintiff lawyer. In fact, the risk of a plaintiff’s claim being barred is substantial given the strict rules that must be followed pursuant to both the Code of Civil Procedure and the Probate Code.

The first thing a Plaintiff should do when he or she finds out a defendant is dead is determine whether he or she is seeking damages within the decedent’s insurance policy limits. Probate Code sections 550 through 554 governs claims against a decedent within insurance policy limits whereas California Code of Civil Procedure §§336.2, 337.40 through 377.42, and Probate Code §9390 governs claims for damages in excess of a decedent’s insurance policy.