Disaster Planning Series #4: Your Client Dies During Litigation. Now What?

Lawyers Mutual of Kentucky understands the idea of tackling a disaster plan can often feel overwhelming. In this series, we will explore small yet impactful steps attorneys can take each month to begin preparing for the inevitable. Click here for our other installments and more disaster preparedness resources.

Now that you have taken steps to prepare for your own unexpected absence, let’s take a look at what is required when a client dies during litigation.

In 2021, the Kentucky Supreme Court confirmed a motion for substitution in accordance with CR 25.01(1) filed within the one-year statute of limitation under KRS 395.278 is sufficient to revive a claim following the death of a party. Estate of Benton by Marcum v. Currin, 615 S.W.3d 34 (Ky. S. Ct. 2021). This decision overturned the Kentucky Court of Appeals’ holding that a two-step process was required to revive a claim.

While the decision simplifies revival of a claim, it serves as a good reminder of the importance of maintaining consistent client contact. Here are a few recommendations to help ensure you can timely respond to a client’s death:

• Address maintaining contact at engagement. You likely already discuss with your client the importance of staying in contact during the case. Supplement this discussion and ask them to designate a trusted person to contact you if the client becomes incapacitated or dies.
• Obtain an emergency contact at engagement. Explain that this contact would only be used if you could not reach them after x number of months and contact was required to protect their interest. If you are aware of any estate planning documents the client may have, make sure you know who the preparing attorney is as they would be a good contact, as well.
• Routinely review local publications for probate notices and obituaries. You should also regularly monitor CourtNet for any new court filings involving your client. Additionally, you or someone in your office should regularly review the obituaries to stay informed.
• Calendar to speak with your client monthly. The best way to ensure timely notice of death is to regularly reach out to the client. If you are doing so, you will become aware of their lack of response in time to investigate and determine whether death is the cause for any lack of communication.

Stay tuned for more, small yet impactful steps you can take to prepare for the inevitable.