Who Can Be Sued for Wrongful Death?

Once a person has died he cannot be sued. Where a cause of action lies against a deceased defendant, the suit should be against the personal representative of the decedent's estate, and not against his estate, even if there has been no personal representative appointed.

In a situation where the plaintiff has brought suit against a deceased person, the plaintiff's only recourse is to file a new action, naming the personal representative as defendant. If the death of the decedent is fraudulently concealed and the statute of limitations has run, the plaintiff can assert the fraud or concealment as a basis for extending the statutory period. It is provided by statute that the death of a person does not stop the running of the statute of limitations applicable to any claim against him, but a claim against the decedent that otherwise would be barred within one year after the death of the decedent is not barred until one year after the death, affording a plaintiff at least one year from the death within which to secure the appointment of a personal representative and to commence suit against the personal representative.