Death of Defendant while Action Pending

If a defendant in a pending personal injury action dies during litigation in Tennessee, a substitution must be made for the deceased defendant.  The lawsuit does not abate if a party dies, but continues against the deceased party’s personal representative. T.C.A. §20-5-103.    The substitution of the party is controlled by Rule 25.01 of the T.R.C.P.   Either party may file a suggestion of death with the court and serve on all parties.  A motion for substitution must be made within 90 days after the suggestion of death is served or the personal injury action may be dismissed. A personal representative is substituted for the deceased defendant, which is usually the administrator or executor of the estate.  If no estate exists, then you may have a personal representative appointed by the probate/chancery court in the county where the deceased defendant lived at the time of death.  After an Order Appointing the Administrator Ad Litem for Cause of Action Only is entered and letters of administration are issued, a motion to substitute should be filed as soon as possible.  After the Administrator Ad Litem is substituted for the deceased defendant, you must serve the Administrator Ad Litem with a summons and complaint in accordance with Rule 4.04 T.R.C.P.  It is imperative that the substitution for the deceased defendant is made within 90 days of the suggestion of death being served, so it is best practice after learning of the deceased defendant’s death to have a personal representative appointed as soon as practicable if no estate was opened, even if a suggestion of death has not been filed by the defendant’s attorney.