Civil Suit In Florida

Navigating Litigation: What Happens When a Defendant Dies During a Civil Suit in Florida

When a defendant in a civil lawsuit dies, the litigation process undergoes significant changes, governed by specific rules and procedures. In Florida, the Florida Rules of Civil Procedure (FRCP) provide clear guidelines on how to handle the death of a defendant to ensure that the cause of action is not extinguished. This blog will explore the steps involved and the relevant FRCP provisions that come into play when a defendant dies during litigation.

The Legal Framework

The death of a defendant does not automatically terminate a civil lawsuit. Instead, the Florida Rules of Civil Procedure outline the process for substituting the deceased party with a suitable representative. The relevant rule is FRCP 1.260, which deals with the substitution of parties.

FRCP 1.260 – Substitution of Parties

FRCP 1.260(a) specifically addresses the death of a party. According to this rule, if a party dies and the claim is not extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party, and, together with the notice of hearing, shall be served on the parties as provided in Rule 1.080 and upon persons not parties in the manner provided for the service of a summons.

Key Points of FRCP 1.260(a):

  1. Motion for Substitution: A motion must be filed to substitute the deceased party with a legal representative, such as an executor or administrator of the estate.
  2. Timeframe: The motion for substitution should be made within 90 days after the death is suggested upon the record by service of a statement of the fact of the death in the manner provided for the service of the motion.
  3. Failure to Act: If the motion is not made within this period, the action shall be dismissed as to the deceased party.

Steps Following the Death of a Defendant

  1. Notification of Death: The first step is to officially notify the court of the defendant’s death. This is typically done by filing a suggestion of death, which informs the court and all parties involved of the defendant’s passing.
  2. Filing a Motion for Substitution: After the suggestion of death is filed, a motion for substitution must be made. This motion requests the court to replace the deceased defendant with their legal representative.
  3. Serving the Motion: The motion for substitution and notice of hearing must be served on all parties involved in the lawsuit and on the successors or representatives of the deceased in the manner prescribed by the rules.
  4. Court Order for Substitution: The court will review the motion and, if granted, will issue an order for substitution, officially replacing the deceased defendant with their legal representative.

Impact on the Litigation Process

The substitution of the deceased defendant ensures the continuation of the litigation process. However, several factors must be considered:

Probate Proceedings

The legal representative of the deceased defendant is usually appointed through probate proceedings. The probate court will appoint an executor or administrator who will handle the deceased’s estate, including any ongoing litigation.

Possible Delays

The substitution process can lead to delays in the litigation timeline. Probate proceedings can be time-consuming, and the appointment of a legal representative may take some time. During this period, the lawsuit may be put on hold until the substitution is complete.

Preservation of Claims

It is crucial to act promptly and comply with the procedural requirements to preserve the claims against the deceased defendant’s estate. Failure to file the motion for substitution within the prescribed timeframe can result in the dismissal of the action against the deceased party.

Practical Considerations

When dealing with the death of a defendant, attorneys and litigants should consider the following practical aspects:


Effective communication with the court and all parties involved is essential. Timely filing and serving of the necessary documents ensure that the substitution process proceeds smoothly.


Accurate and complete documentation is crucial. This includes obtaining the death certificate, filing the suggestion of death, and providing the court with all relevant information about the deceased’s legal representative.

Coordination with Probate Counsel

Coordinating with probate counsel can help streamline the substitution process. Probate counsel can assist in expediting the appointment of the legal representative, ensuring that the litigation can continue without unnecessary delays.


The death of a defendant during litigation introduces complexities that must be managed carefully to ensure the continuation of the lawsuit. The Florida Rules of Civil Procedure, particularly FRCP 1.260, provide a clear framework for substituting the deceased party with their legal representative. By following the prescribed steps and adhering to the procedural requirements, litigants can navigate this challenging situation and preserve their claims.

Properly managing the death of a defendant requires timely action, effective communication, and thorough documentation. By understanding the relevant rules and procedures, attorneys and litigants can ensure that the cause of action is not extinguished and that justice is pursued despite the death of a party involved in the litigation.

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