One fairly technical issue in the law is under what circumstances a legal case based upon something that arises during someone's life (or as a consequence of their death) can be brought after death, and under what circumstances a pending legal case can continue after someone's death.
Most of the rules are fine and work well, but a few should be reformed.
The majority rules on these issue in U.S. law are as follows:
1. Criminal cases. Pending criminal cases against a criminal defendant are dismissed upon the death of a criminal defendant. A criminal case is pending until all direct appeals of the conviction are exhausted. Notably, even restitution awards made in a trial court for the benefit of crime victims are vacated if the criminal defendant dies while a direct appeal of the criminal case is pending.
While this is harsh for crime victims entitled to restitution, often restitution beneficiaries can commence a new civil action for money damages from the crime against the criminal defendant's estate using evidence presented originally in a criminal restitution hearing, however. The simplicity of the rule is also desirable.
2. Most civil actions survive. Most rights to bring a civil lawsuit and most pending civil lawsuits, survive the death of the person bringing them, often with a short extension of a statute of limitations which would have expired shortly after the death of the person. In these cases, the probate estate of the person with a right to bring the lawsuit or who is the party bringing the lawsuit is substituted for the person who died.
3. Personal civil actions lapse. The right to bring a civil lawsuit and pending civil lawsuits for personal injuries and defamation and certain other "personal actions" terminates at the death of the person bringing them. But, if a money judgment is obtained in such a lawsuit, that money judgment survives the death of the person bringing the claim and belongs to their probate estate. The status of a "personal action" in which a judgment has been entered but is subject to appeal is not necessarily consistent from state to state.
This is a bad rule and a better rule would be to allow all civil claims of a deceased person for money damages to survive their death. People who physically injure you or harm your non-economic interests in reputation or dignity or civil rights should not get a windfall when the person whom they wronged dies.
4. Divorces and legal separation. A divorce or legal separation action is dismissed if a final trial court property division/financial decree has not yet been entered in the case, but survives if a final trial court property division/financial decree has been entered.
Whether this rule really makes sense or not is a close call. Allowing divorces and legal separations which had been filed already to continue after death and to be handled by the deceased spouse's probate estate, would not necessarily be worse, and there is good reason to say that it would be better (and it would be closer to the universal general rule). In reality, most divorce cases that are commenced after not abandoned due to a reconciliation mid-case, although it does happen. This rule was devised in the days of fault based divorce when filing for a divorce did not guarantee that it would be granted, something that is no longer the case in the no-fault divorce era. The economic incentive the current rule creates for a divorcing spouse to kill their soon to be ex-spouse if they think that they won't be caught is not a good one. But, this incentive is weaker in community property states where the property division upon death and the property division upon divorce are very similar.
Paternity can be established after either the child, or the parent, has died, if legally necessary for some purpose. Child support obligations generally survive death, although this can sometimes be adjusted prospectively. Alimony payments arising after the death of either the alimony beneficiary or the alimony payor die, although there are exceptions.
Court orders awarding parenting time and parental responsibilities to a person who die are mostly moot after that person dies, although sometimes their right to appoint a guardian by a will or other document may be honored after their death.
5. Wrongful death plaintiffs. In most states, the right to bring a civil lawsuit for wrongful death belongs to statutorily designated next of kin of the person who was killed, rather than to the estate of the person who was killed.
This is an unduly complicated rule that can lead to problems. A better rule would be to give the right to sue for wrongful death to the probate estate, even though this means that the wrongful death lawsuit proceeds would then be available to the dead person's creditors.
6. Guardianships and conservatorships. When someone subject to a guardianship or conservatorship dies, there is a short post-death period in which the guardianship or conservatorship is finally settled and then converted to a probate case.
7. Deceased defendants. In almost every case, any civil liability for money damages that someone who died had under any legal theory survives their death, with their probate estate substituted for the person who died, sometimes with minor adjustments to the statute of limitations for suing.
If the lawsuit was commenced before the person died, usually, their probate estate is substituted as a defendant in the case.
If the lawsuit was not commenced before the person died, usually, a claim must be filed in the probate estate of the person who died (which can be opened by a creditor if the next of kin fail to do so), if the probate estate is solvent, by both the deadline of a statute of limitations and the deadline for filing probate claims.
If the lawsuit was not commenced before the person died, and there is no probate estate or the probate estate is insolvent, but that person was covered by liability insurance, a "direct action" can be filed against the insurance company, bypassing the probate estate, by the statute of limitations.
One notable exception to this general rule is that federally guaranteed student loans are generally forgiven, as a matter of contract upon death.
8. In rem claims. If someone has obtained an interest in specific property, such as a judgment lien or a mortgage or a car loan or a co-ownership interest in the property, that right in the property survives the death of the owner of that property (and the death of the owner of the right in the property), even if a deadline for filing a claim in the probate estate is missed by the claimant. But, this "in rem" claim is limited to the specific pieces of property affected by the claimant's rights in that property.
Also, notably, a death is often an event of default under contracts to which the deceased person is a party, and collection efforts of in rem creditors like mortgage lenders, can't be delayed by having a probate estate file for bankruptcy.
The inability of probate estates to obtain temporary protection from collection actions by in rem creditors of the deceased person is a bad rule. The ability to declare a default under a contract such as a mortgage that is being fully performed is also sometimes problematic.
9. Limited Liability Companies and Partnerships In most U.S. states, owners of limited liability companies and partnerships that die or otherwise transfer their rights in the company or partnership have greatly diminished rights at that point, in contrast to owners of corporations whose estates generally receive all of the rights of the deceased corporation shareholder.
This is a bad rule for both lifetime transfers of ownership interests and at death. The corporate form rule is a much better rule.
10. Bankruptcy. I honestly don't know from memory what rules apply when someone in the midst of a bankruptcy proceeding dies. I suspect that the bankruptcy lapses, but I'm not sure that this is the case and any rule raised lots of tricky subsidiary issues related to how the loose ends of the pending bankruptcy case are wound up. I may supplement this post if I have occasion to look into this issue.
No comments:
Post a Comment