What Happens When a Party Dies During a California Lawsuit?Part 2: The Attorney's Perspective

The client's death ends the lawyer's authority to act for the client. It does not end the lawyer's duties.

In Part 1, we discussed what happens to a California lawsuit when a party dies, including whether the claims survive, who may take over the case, and how probate and litigation deadlines can affect what happens next.

But identifying the proper representative is only the beginning. What happens to the deceased client's attorney? What if a hearing is approaching, settlement negotiations are underway, or the lawyer is holding client funds? And how can the death affect damages, cross-claims, and other pending issues?

In Part 2, we turn to these practical questions and discuss what attorneys, families, and estate representatives should consider after a party dies during active litigation.

1. What Happens to the Deceased Client's Attorney?

This is another area where intuition can be misleading.

A lawyer cannot simply assume: "I represented him yesterday, so I still have the same authority today."

California law generally recognizes that an attorney's authority to act for a client ends when the client dies. In Herring v. Peterson (1981) 116 Cal.App.3d 608, 614, the court explained that the continued presence of the deceased party's attorneys was not enough to keep the case moving. Because no personal representative had been substituted and the attorneys had not appeared for an authorized representative or insurer, they could not simply continue acting in place of the deceased client.

That creates an unusual situation.

The lawyer may still have important professional responsibilities relating to the client's file, confidential information, funds, preservation of the client's interests, and avoiding foreseeable prejudice. But that is different from having authority to receive substantive instructions from just anyone in the family.

Before taking significant action, counsel should determine who now has authority to instruct the lawyer and whether a new or revised attorney-client relationship needs to be established.

2. What About an Upcoming Hearing?

Suppose the client dies one week before a demurrer hearing.

The safest assumption is not: "Everything automatically stops."

But it is also not: "Nothing changed, so we will proceed exactly as before."

The court should be appropriately informed, and counsel should determine whether substitution, a continuance, stay, or other procedural relief is appropriate.

The death of the client does not itself decide whether the demurrer was legally correct. The merits issue and the representation and substitution issue are separate. For how demurrers work, see Demurrers and Oppositions in California State Court: A Practical Guide.

3. Can the Lawyer Keep Negotiating a Settlement?

This issue deserves special attention.

Suppose the parties are actively negotiating. The opposing side makes an offer on Monday. The client dies Tuesday. The lawyer receives the death information Wednesday.

Can the lawyer continue negotiating as though the client were alive?

That presents serious authority and ethics concerns.

California Rules of Professional Conduct 3.3 and 4.1 prohibit material false statements to tribunals and others in their respective settings.

ABA Formal Opinion 95-397 also specifically addresses the death of a client during settlement negotiations in pending litigation and concludes that the death should be disclosed to opposing counsel and the court at the first communication after learning of it.

Although that ABA opinion is persuasive guidance rather than a California statute establishing a universal deadline, it highlights the fundamental problem: a lawyer should not create the false impression that a deceased client remains alive and continues to authorize settlement decisions.

At the same time, disclosure should be appropriate and limited. A lawyer does not necessarily need to disclose privileged strategy, private family information, or unnecessary estate details simply because the client died.

4. Does Attorney-Client Privilege Disappear When the Client Dies?

No.

A client's death does not mean that the client's confidential communications suddenly become available to everyone, including family members.

Evidence Code section 953 addresses who holds the privilege after the client's death, including the deceased client's personal representative in appropriate circumstances. Evidence Code section 955 addresses the lawyer's obligation to claim the privilege when required.

This creates another reason lawyers should verify authority before turning over the client's file.

A relative saying, "I'm his daughter; please send me all of his emails with your office," does not necessarily resolve the privilege question.

5. What Happens to Money the Client Already Paid the Lawyer?

Suppose the client paid an advance for a motion, cross-complaint, trial preparation, or another project and dies before the work is completed.

The lawyer cannot simply assume: "The money was already paid, so I should finish the work."

Payment and authority are separate issues.

California Rule of Professional Conduct 1.16(e) addresses the return of unearned advance fees and unincurred expenses upon termination, subject to the rule's treatment of a true retainer.

The lawyer should therefore review:

• the engagement agreement,
• what work was completed,
• what portion of the payment was earned,
• whether expenses were incurred, and
• who is legally entitled to receive any refund.

Depending on the circumstances, some of the fee may have been earned and some may need to be returned.

6. What If the Deceased Person Was Planning to File a Cross-Complaint?

Death does not automatically destroy an affirmative claim the deceased person could have asserted.

But three different questions now need to be separated:

1. Does the claim survive?
2. Who owns and can prosecute it?
3. Is it still timely and procedurally available?

Code of Civil Procedure section 377.30 provides the general framework for pursuing surviving claims belonging to a deceased person.

But the ordinary cross-complaint rules still matter.

Sections 428.50, 426.30, and 426.50 may become relevant depending on whether the proposed cross-claim was compulsory, whether an answer has already been filed, and whether leave of court is necessary.

In other words, a family member cannot necessarily tell the deceased person's lawyer: "He wanted to sue them back. Please finish the cross-complaint."

Counsel first needs to determine who can authorize the claim, whether it survived, whether the limitations period remains open, and whether the court's permission is required.

7. Does Death Change the Damages That Can Be Recovered?

It can. This is one of the most important substantive consequences of death during litigation.

If the plaintiff dies

Code of Civil Procedure section 377.34 governs damages in many survival actions.

Generally, the deceased plaintiff's estate or successor may continue pursuing qualifying losses the decedent sustained before death, but damages for the deceased person's pre-death pain, suffering, or disfigurement are ordinarily restricted.

California temporarily expanded recovery of those damages for certain actions filed between January 1, 2022 and December 31, 2025, along with certain qualifying actions that received trial preference before January 1, 2022.

That filing-date limitation matters in 2026.

A case newly filed in 2026 does not automatically receive that temporary treatment simply because the plaintiff subsequently dies.

If the defendant dies

A different rule applies when the deceased person was the defendant.

Under Code of Civil Procedure section 377.42, punitive or exemplary damages recoverable under Civil Code section 3294 generally cannot be recovered against the deceased defendant's personal representative or successor.

So the consequences of death can be very different depending on which side of the "v." the deceased person was on.

8. What Should the Estate or Family Do?

When a person involved in litigation dies, the family often focuses first on funeral arrangements, finances, trusts, and probate. That is entirely understandable.

But pending litigation should be identified early because the lawsuit may represent either an asset or a liability of the estate.

The estate representative should quickly determine:

• What lawsuits was the deceased person involved in?
• Was the deceased a plaintiff, defendant, or both?
• Are there judgments that need to be enforced?
• Are there upcoming hearings, discovery deadlines, or trials?
• Has probate been opened?
• Who has legal authority to act?

Probate Code section 9600 imposes duties of ordinary care and diligence on a personal representative in managing an estate. Section 9601 can impose liability for losses resulting from a breach of fiduciary duty under the circumstances addressed by the statute.

So ignoring a significant lawsuit can itself become an estate-administration problem.

If immediate action is necessary and no general personal representative can be appointed quickly enough, California law also provides for the possibility of appointing a special administrator under Probate Code section 8540.

That can be particularly important when litigation deadlines or estate assets cannot wait for the ordinary probate process.

9. A Party Has Died. What Should Happen Next?

When counsel learns that a client or opposing party has died during active California litigation, the response should be organized rather than improvised.

The first priority is to confirm the death and determine who has legal authority. Obtain the death certificate when appropriate, determine whether probate has been opened, identify any executor or administrator, obtain the appointment documents and letters, and review relevant trust documents if a trust may be involved.

At the same time, counsel should audit the lawsuit immediately. Check upcoming hearings, trial dates, discovery deadlines, pending motions, responsive pleading deadlines, cross-claims, statutes of limitation, and any orders already entered.

Next, determine what procedural action the court requires. Depending on the case, that may involve a substitution motion, notice concerning the death, request for a continuance, probate creditor claim, special-administrator proceeding, or an insurance-only procedure.

Then separately evaluate the substantive consequences: Which claims survive? Which damages remain available? Who owns any affirmative claims? Is a contemplated cross-complaint still timely? Does insurance apply?

Finally, preserve the evidence. The deceased person's records and testimony may become some of the most important evidence in the entire case.

At Sari Law Firm, we assist clients, families, estate representatives, and businesses with complex California litigation, including the procedural issues that can arise when a party dies during an ongoing case. If a death has affected a pending lawsuit or potential claim, contact us to evaluate the circumstances and the next steps.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Every case is different. If you believe your rights have been violated, consult a qualified California attorney to evaluate your specific situation. Parties dealing with the death of a litigant should consult qualified litigation and, when appropriate, probate counsel regarding their particular circumstances.