Abatement Based on Death of a Party
Authored by Ken LaMance
, LegalMatch Law Library Managing Editor and Attorney at Law
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What does “Abatement” Mean?
Abatement refers to a procedural mechanism wherein a case is suspended or ceased until further notice is given to proceed. This may occur as a result of various factors, such as when there is a transfer of property or when litigation on the same issue has already begun in a different court. Abatement is often used as a form of defense, which prevents the defendant from having to deal with multiple cases at the same time.
In the context of tort law, abatement can refer to a judge-issued order requiring a person to stop performing certain acts that are considered to be a nuisance. The word “abate” means “to suspend or extinguish”.
Does the Death of a Party lead to an Abatement of a Claim?
Historically, abatement due to the death of a party depended on whether the claim was considered to be personal to the parties or not. For example, a personal injury or slander case was considered to be personal. Therefore, if a party to such a lawsuit became deceased, the claim was subject to abatement. However, claims involving real property or contracts were not considered personal, and so at the death of a party the action was not immediately abated.
Currently the general rule is that an abated claim can be “revived”, even if a party has died during the course of litigation. This is generally true regardless of whether or not the issue is personal in nature.
In order to revive an abated claim after a party has died, it is required that:
The deceased party’s representative is substituted into the proceedings. The representative is usually the party’s executor
or administrator of their estate.
· The cause of action must continue to have a legal significance even after the party’s death
The general rule is that only living persons may engage in a lawsuit. Thus, if the deceased party’s representative acts as a substitute, then the proceedings will be allowed to resume. However, there may be a momentary period of abatement while the representative is being contacted and becomes able to appear in court.
A distinction should be made between the terms “cause of action” and “action”. A cause of action is the legal issue that is being resolved in court, whereas an “action” refers to the proceedings themselves. Thus, a cause of action can survive even if the action or lawsuit has been abated. If that is the case, the claim can be revived since the cause of action is still at issue.
Are there any Exceptions to Revival statutes?
State laws vary with regards to revival statutes, but most states do not totally abate a claim due to the death of an indispensable party. An exception to this general rule is in the case of marriage claims. Marriage claims such as divorce are still regarded as entirely personal and therefore must be terminated upon the death of one of the spouses.
On the other hand, some states do allow marital lawsuits to continue if there are lingering issues over marital property, especially if the marriage had involved fraud. Again, the action would be revived if the deceased spouse’s representative is able to appear in court.
Do I Need a Lawyer for Abatements Based on the Death of a Party?
Abatements based on the death of a party can present complicated legal issues. You should consult with an attorney to determine how to proceed in such a situation. Also, an attorney can be of assistance when you are drafting a will or naming an executor. Your executor should be someone who can represent your interests in the event that you are unable to represent yourself. It is important to have an attorney explain to you the various state laws regarding abatement.
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Last Modified: 01-03-2011 02:33 PM PST
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