Abatement Based on Death of a Party

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 What Does "Abatement" Mean?

In short, an abatement is an interruption of a legal proceeding. The term abatement refers to a procedural mechanism in which a case is suspended or ceased until further notice is given to proceed. The word “abate” means “to suspend or extinguish.” Abatement 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.

As such, abatement is often utilized 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 also refer to a judge-issued order which requires that a person to stop performing certain acts that are considered to be a nuisance.

Does the Death of a Party Lead to an Abatement of a Claim?

In the past, abatement due to the death of a party was dependent upon whether the claim was considered to be personal to the parties. An example of this would be how a personal injury or slander case was generally considered to be personal. As such, 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 to be personal. Because of this, at the death of a party the action was not immediately abated.

Currently, the general rule is that an abated claim may 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 once a party has died, it is required that the deceased party’s representative is substituted into the proceedings. This representative is generally the party’s executor or the administrator of their estate.

For example, if an individual is married, typically their surviving spouse would step into the lawsuit, in place of their deceased spouse. Additionally, 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. Because of this, if the deceased party’s representative acts as a substitute, 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.

It is important that a distinction be made between the terms “cause of action” and “action.” A cause of action refers to the legal issue that is being resolved in court. Alternatively, an “action” refers to the proceedings themselves. Therefore, a cause of action can survive even if the action or lawsuit has been abated. In such cases, the claim can be revived due to the fact that the cause of action is still at issue.

Are There Any Exceptions to Revival Statutes?

State laws vary in terms of revival statutes. However, most states do not totally abate a claim due to the death of an indispensable party. An exception to this general rule would be 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.

Alternatively, some states do allow marital lawsuits to continue if there are lingering issues over marital property. This is especially true if the marriage had involved fraud. As previously mentioned, the action would be revived if the deceased spouse’s representative is able to appear in court.

For example, in a case involving past due child support, where one parent owes the other parent for the support of a child as outlined in a court order, the child support claim would survive the death of the obligor (the individual that has a duty to pay support). Thus, the obligee (person entitled to receive child support) would be able to continue to pursue collection of past due child support against the estate of the obligor.

What Other Circumstances May Involve Abatement?

As previously discussed, abatement can occur alongside various legal issues, including personal injury. Generally speaking, abatement can be available if there are pending actions on the same claim. If an action or lawsuit is pending, this usually means that the proceedings have already begun but a final judgment has not yet been rendered. If an action is pending, and a second action is filed, the first claim could serve as grounds for abatement of the second claim. To put it more simply, the second action will not be heard because a claim has already been filed for the same purpose.

Courts may allow abatement on the grounds of another action pending in order to protect the party from having to defend several actions at the same time. This is generally under the condition that they are based on the same basic cause of action.

The doctrine of abatement is what allows the court to prevent unnecessary expenditures of judicial time and resources. Simultaneously, abatement protects the defendant from potentially frivolous lawsuits which have been instituted simply for the purpose of harassment.

A second action may be abated based on a prior and pending action if the following elements are met:

  • Both actions are between the same parties;
  • The rights of the parties are already being determined, or have been determined in the prior action;
  • The actions involve the same cause of action and subject matter;
  • Both actions are filed in the same jurisdictional territory; and
  • The second action has been filed in a court with correct jurisdiction.

However, if the first pending action was filed in a federal court, a second action filed in a state court will not be abated. This remains true even if the cause of action and parties are the same. This is due to the fact that federal and state personal injury laws can often differ drastically regarding the same subject matters.

In general, the second action is abated if there is a prior action pending. However, there are some circumstances in which a second action will result in the abatement of the first. A second action may abate a prior proceeding when the following conditions are met:

  • The second claim address the legal issue in a more thorough or complete manner;
  • The second claim is brought in good faith, and not simply for the purpose of harassing the defendant;
  • Abatement of the second claim would result in the substantial loss of rights for the plaintiff; and
  • The prior action is somehow defective.

In such instances, the first action would be terminated while the second claim would be focused upon instead.

Do I Need an Attorney for Issues Involving Abatement Based on the Death of a Party?

Abatements based on the death of a party often involve especially complicated legal issues. Because of this, you should consult with a skilled and knowledgeable estate attorney in order to determine how best to proceed in such a situation. An experienced and local estate attorney will be most knowledgeable in terms of what your state’s specific laws are regarding abatement and related matters. Additionally, an attorney can also assist when you are initially drafting your will or naming an executor.

Estate law is closely related to and associated with family law. As such, an estate attorney is an attorney who is knowledgeable in both branches of the law, but specializes in estate planning. Once again, an estate attorney can draft and implement legal documents such as wills and trusts, while also arranging and organizing transfers of assets from the testator to their heirs and beneficiaries.

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