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Can a Dead Person Sue You?

If someone dies, does Texas law allow the dead person to sue you? The answer is not as clear-cut as one would think. The court addresses this in Balderaz v. Martin, No. 13-18-00056-CV (Tex. App.-Corpus Christi 2019).

Facts & Procedural History

Josephine died without a will. Before she died and unrelated to her death, she underwent surgery that was allegedly not up to current medical standards. Thus, she had a right to sue the doctor and hospital prior to her death. This begs the question, can a dead person sue you?

After she died, her attorney filed suit against the doctor and hospital. In doing so, the attorney brought suit in Josephine’s name. The petition even sought damages for future medical needs. The attorney was apparently not aware that Josephine had died three months prior to the time he filed suit in her name.

The time for bringing suit against the doctor and hospital expired. After this, Josephine’s sole heir filed for probate as an independent administration and was granted letters of administration. He then filed a suggestion of death in the lawsuit.

The trial court dismissed the lawsuit based on Josephine not having standing, given that she was dead at the time the lawsuit was filed.

Standing vs. Capacity to Sue

A litigant has to have standing to bring suit in Texas. Absent standing, the court does not have subject matter jurisdiction over the lawsuit. This is fatal to the lawsuit.

The court notes the general rule that a claim for personal injuries survives the death of an injured person, but it “survives to and in favor of the heirs, legal representatives, and estate of the injured person.”  So the heirs or the estate can sue on behalf of the decedent:

Thus the suit could be brought on Josephine’s behalf after she died only by a person named as representative of her estate or as her heir. When Josephine died, she ceased to exist as a person and thus no longer had standing to assert her claim.

Josephine’s heir argued that this wasn’t a standing issue, but rather a capacity issue. Capacity issues can be cured or fixed after the fact. There is legal authority for this position. The appeals court in this case distinguished this case from the prior legal authority. Citing the prior legal authority, the appeals court notes:

During the course of the litigation, Lovato filed an application for independent administration of her mother’s estate and was appointed after limitations expired. Id. She amended her petition and the Supreme Court held that the amendment related back. Id. at 852; see also Gomez v. Tex. Windstorm Ins. Ass’n, No. 13-04-598-CV, 2006 WL 733957, at *2 (Tex. App.-Corpus Christi-Edinburg Mar. 23, 2006, pet. denied) (mem. op.) (“It is undisputed that the all interested parties knew from the start of the lawsuit that Agapito had died before the suit was filed; thus, it was clear to all involved that the estate of Agapito, not Agapito himself, was filing the suit.”).

Thus, according to the appeals court, the lack of knowledge in this case means that there was no capacity issue. Rather, there was a standing issue. As a result, the appeals court concluded that the trial court did not have subject matter jurisdiction.

The Takeaway

The takeaway is that those handling lawsuits for decedents need to bring suit in the estate or heirs’ name. If the suit is not brought in the decedent’s name and the decedent died before the lawsuit is filed, the plaintiff needs to start the probate process to get appointed as the executor for the decedent’s estate and establish that everyone knew that the decedent had died prior to the lawsuit being filed.

Our Houston Probate Attorneys provide a full range of probate services to our clients, including helping with disputes involving fraud and power of attorney forms. Affordable rates, fixed fees, and payment plans are available. We provide step-by-step instructions, guidance, checklists, and more for completing the probate process. We have years of combined experience we can use to support and guide you with probate and estate matters. Call us today for a FREE attorney consultation.


The content of this website is for informational purposes only and should not be construed as legal advice. The information presented may not apply to your situation and should not be acted upon without consulting a qualified probate attorney. We encourage you to seek the advice of a competent attorney with any legal questions you may have.

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