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Understanding the Process When a Litigant Passes Away During a Lawsuit in Mississippi

October 12, 2023

Zachary Wessler, Sr.

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Understanding the Process When a Litigant Passes Away During a Lawsuit in Mississippi

Among the events that can significantly impact the course of a lawsuit is the unexpected passing of a litigant while a case is pending. Numerous questions and concerns arise for all involved, parties and non-parties alike (such as non-party stakeholders like insurance claims professionals and insurance companies). Fortunately, for Mississippi litigants and their attorneys, Mississippi has enacted a clear process to address this situation. This article explains the implications and essential steps that should be taken..

Filing a Suggestion of Death

Upon a litigant’s death, the first responsible course of action is to file a "Suggestion of Death" under Mississippi Rule of Civil Procedure Rule 251. This seemingly straightforward step is crucial as it initiates a formal process, providing notice to the court of the deceased litigant's demise. Furthermore, it sets a prescriptive clock in motion that all parties must adhere to.

The Prescriptive Clock

Once a Suggestion of Death has been properly filed, a pivotal countdown begins. The deceased litigant's successors or legal representatives2 are given a ninety (90) day window within which to file a motion to substitute themselves as the proper party(ies) in the lawsuit. This process is designed to ensure that the litigation can continue smoothly, with the appropriate parties representing the interests of the deceased litigant.

Failure to File a Motion to Substitute

Rule 25 of the Mississippi Rule of Civil Procedure describes the consequences that result when a motion to substitute is not filed within the prescribed ninety (90) days. The rule states that, if the deceased litigant's successors or legal representatives do not take action within the allotted time frame, "[t]he action shall be dismissed without prejudice as to the deceased party3."

What does this mean? A dismissal “without prejudice” signifies that the lawsuit is not terminated permanently, but it is, in essence, put on hold4. The door remains open for potential future proceedings, but the immediate case is no longer active. However, if the statute of limitations (or prescriptive period) has run on the claim, then the dismissal “without prejudice” will, in effect, become a dismissal “with prejudice,” and the plaintiff will not be allowed to refile. So, one must be mindful of the limitations period applicable to the underlying claim.

Implications for All Parties

Understanding the legal implications of a litigant's passing is essential for making informed decisions and navigating the new legal landscape effectively. For insured individuals this information is vital to protect their interests and ensure a smooth resolution of the lawsuit against them. For non-party stakeholders (e.g., insurance claims professionals and insurance companies)  knowing these procedures is beneficial   for making  informed adjusting decisions following the unexpected death of a litigant.

[1] Miss. R. Civ. P. 25(a)(1).

[2] E.g., an estate administrator(trix) or executor(trix).

[3] Miss. R. Civ. P. 25(a)(1).(Emphasis added).

[4] In other words, if a case is dismissed “without prejudice,” it can be refiled at a later time. However, if the statute of limitations (or prescriptive period) has run out before the case is refiled, then the plaintiff has missed their deadline to bring the case again. In such a situation, the effect can be similar to a dismissal “with prejudice,” which means the case cannot be filed again. So, even though the initial dismissal of a case was “without prejudice,” the expiration of the statute of limitations (or prescriptive period) can convert it into a dismissal “with prejudice” because the legal opportunity to refile the case has been lost.

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