Death & Procedure:
What to do when your client or a family member dies or becomes incapacitated during litigation.
As elder law attorneys, we routinely deal with the ambit of legal issues arising from the death or incapacity of a client, but the death or incapacity of a client may create a whole set of new legal issues and procedures for attorneys not well versed in elder law or for pro se litigants. For example, what happens if a party dies while litigation is pending?
In many instances when a party dies during the pendency of litigation, once the proper personal representative qualifies on the estate of the decedent, the parties can (and should) move to substitute the personal representative for the deceased or incapacitated party. See, e.g., Bartee v. Vitocruz, 288 Va. 106, 111 (2014) (citing Va. Code § 8.01-56 and Rule 3:17) (“[I]f a person becomes incapable of prosecuting or defending a case due to death, the action may proceed on behalf of the decedent’s estate by and through the substitution of decedent with his personal representative.”). The Rules of the Supreme Court of Virginia very sensibly allow this motion to be made by a successor, but it must be properly served with the proposed amended pleading, and the opposing party should be given twenty-one days to respond, unless they agree otherwise. Va. Rule 3:17(B). If the motion to substitute is not made within a reasonable and proper time, upon death the suit will be discontinued. See Va. Code § 8.01-18. Additionally, when making a motion to substitute, Virginia attorneys must be careful to style the case properly. See Va. Code § 8.01-6.3.
A helpful tip for attorneys practicing in circuit courts in the Commonwealth of Virginia: when you make a motion to substitute a party, and your motion is granted, be sure to also submit an order which directs the clerk to amend the style of the case. Alternatively, this language can be included in your order granting the motion to substitute. If the clerk does not have any direction to amend the style of the case, it may very well go unchanged with the potential of creating a number of filing and administrative issues for both parties in the future.
In many instances following the simple procedural rules for substitution (after proper qualification) will allow the case to go forward. In some cases, however, the death of party means the death of the action. For example, in the case of a pending action for divorce, if one party dies while the suit is pending, but before entry of the final decree, the action abates and the court will no longer have jurisdiction over the matter. The action abates because “the death terminates the marriage, thus rendering the divorce suit moot as it relates to the parties’ marital status.” Estate of Hackler v. Hackler, 44 Va. App. 51, 67 (2004) (quoting Sprouse v. Griffin, 250 Va. 46, 50 (1995)). The court lacks jurisdiction because a circuit court’s jurisdiction in divorce suit is purely statutory. And because the court no longer has jurisdiction over the parties’ property, it cannot make any award of equitable distribution.
The same is not true, however, if the party to a divorce proceeding dies after entry of the final decree—even if litigation is pending over enforcement of the final decree or separation agreement. For example, the Virginia Court of Appeals addressed a case where a party passed away after the entry of the final decree, but before entry of a proposed qualified domestic relations order (“QDRO”). The court held that the action did not abate, and that the circuit court indeed had continuing jurisdiction to enter the QDRO. See Forest v. Forest, 2013 Va. App. LEXIS 80, at *6 n.6 (Va. App. Mar. 12, 2013). Moreover, it is well established in Virginia that “property rights and interests become vested in the parties when they agree upon them, set them forth in a valid separation agreement, and have them incorporated into their final divorce decree.” Griffin v. Griffin, 62 Va. App. 736, 765-66 (2014).
This newsletter is not intended to be exhaustive; there are many other considerations, scenarios, and legal issues that arise when a client or party dies during the pendency of litigation that are outside the scope of this article. When faced with these issues, the advice of an elder law attorney should be sought.
Ask Kit Kat – New Baby Lion in Norfolk
Hook Law Center: Kit Kat, what can you tell us about the new baby lion born at the Virginia Zoo in Norfolk?
Kit Kat: Well, this is a feel-good story if there ever was one! A baby male lion was born to a female lioness named Zola on Oct.28, 2017. Zola is thirteen. As of yet, her cub is unnamed. The zoo plans to have a naming contest in the next few weeks. A Cub Cam is planned, too, so the public can follow his progress. Currently, he is kept secluded in a cubbing den, as he gains strength and girth. At birth, he weighed 3 pounds and 5 ounces. He now weighs about 10 pounds. Eventually, he will weigh around 350 pounds, if he takes after his dad, Mramba, another resident at the zoo.
Baby lion is getting a lot of attention—maybe a little too much. Most litters of lion cubs have between two-to-five cubs. Since baby lion is an only cub, his mom Zola is lavishing all her maternal love on him. Her grooming has been a little excessive, according to Colleen Clabbers, the zoo’s veterinarian. Baby lion has developed a sore under his right arm. The zoo is monitoring the situation. Stay tuned for further updates on Baby Lion! (Ryan Murphy, “ ‘Fuzzy and vocal’ lion cub born at Virginia Zoo,” The Virginian Pilot, December 1, 2017, pg. 1 and 8)
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