Rule 37.Substitution of Parties: Death, Incapacity, and Transfer of Interest

Rule 37 handles three events that change who the parties are while a case is pending.

Death, and the line the rule draws

If a party dies while a petition for dissolution, legal separation or annulment is pending, the action abates and the court will dismiss the case. There is no substitution and no continuation. The marriage ended by death, so there is nothing left to dissolve.

If a party dies while a petition for paternity or maternity is pending, the action does not necessarily abate, in accordance with A.R.S. section 25-805. The distinction is the point of the rule: a status that survives the party -- parentage, and everything that follows from it -- can still be determined.

Incapacity

On motion or stipulation, the court may continue the action by or against the representative of an incapacitated person or an adult in need of protection. Service is doubled: the motion goes to the parties under Rule 43, and to the incapacitated person's representative in the same manner a summons and pleading are served under Rule 40(f)(1) or Rule 41. A representative being brought into a case gets original-process service, not the lighter treatment given to filings in a case already under way.

Transfer of interest

If a party's interest in property is transferred, the action may simply continue by or against that party. The court may instead -- on motion, or on stipulation of the parties and the transferee -- order the transferee substituted or joined. Again the motion is served on the parties under Rule 43 and on a nonparty transferee in the manner of a summons.

Where the harder cases go

Rule 37 says what happens procedurally. Where a party may be incapacitated and the question is whether protection is needed at all, Rule 37.1 supplies the investigation, the guardian ad litem, and the automatic stay.