Death of A Defendant May Not Signal The End Of The Road For A Plaintiff’s Recovery

A question often arises regarding what happens if you have a legal claim against someone that dies before you can pursue your lawsuit.  Does this signal the end of the road for any recovery?  The answer is “maybe not.”  In addition to a potential direct action against a decedent’s estate, the California Probate Code and California Family Code provide additional avenues for potential recovery.

Subject to certain exceptions, California Probate Code §13550 provides for personal liability by the surviving spouse:

Except as provided in Sections 11446, 13552, 13553, and 13554, upon the death of a married person, the surviving spouse is personally liable for the debts of the deceased spouse chargeable against the property described in Section 13551 to the extent provided in Section 13551.
 

Cal. Prob. Code § 13550.

Under California Probate Code §19001, trust property of a deceased settlor that was subject to the power of revocation at the time of the settlor’s death may be subject to creditor claims:

Upon the death of a settlor, the property of the deceased settlor that was subject to the power of revocation at the time of the settlor’s death is subject to the claims of creditors of the deceased settlor’s probate estate and to the expenses of administration of the probate estate to the extent that the deceased settlor’s probate estate is inadequate to satisfy those claims and expenses.
 

Cal. Prob. Code § 19001.

Under California Probate Code §19400, trust beneficiary liability may exist:

Subject to Section 366.2 of the Code of Civil Procedure, if there is no proceeding to administer the probate estate of the deceased settlor, and if the trustee does not file a proposed notice to creditors pursuant to Section 19003 and does not publish notice to creditors pursuant to Chapter 3 (commencing with Section 19040), then a beneficiary of the trust to whom payment, delivery, or transfer of the deceased settlor’s property is made pursuant to the terms of the trust is personally liable, to the extent provided in Section 19402, for the unsecured claims of the creditors of the deceased settlor’s probate estate.
 

Cal. Prob. Code § 19400.

Under California Family Code § 910, community estate liability may exist:

Except as otherwise expressly provided by statute, the community estate is liable for a debt incurred by either spouse before or during marriage, regardless of which spouse has the management and control of the property and regardless of whether one or both spouses are parties to the debt or to a judgment for the debt.

 

Cal. Fam. Code §910.

When faced with the death of a potential defendant, there may exist other avenues of recovery.  The Gimino Law Office has pursued such claims and can assist you in the evaluation of whether or not provisions like these may be available to you.

Peter J. Gimino III

Founder

Mr. Gimino is the founder of The Gimino Law Office, APC. He has extensive experience litigating matters in state and federal courts at all stages of litigation. Mr. Gimino represents both individuals and business clients with domestic and international operations in a wide variety of industries. His practice focuses primarily on civil litigation for individual disputes, business litigation, trade secret and unfair competition litigation, creditor’s rights, and judgment enforcement.

Mr. Gimino has also provided pro bono legal services to the community. His pro bono work has resulted in the successful prosecution of claims for financial elder abuse, resolution of landlord tenant disputes, and enforcement of a charitable donation contract.

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