Rule 25.Substitution of parties

Ch. IV: Parties · Current through June 1, 2026 · Last verified September 9, 2026

In one sentenceRule 25 keeps a case alive when a party dies, becomes incompetent, transfers their interest or leaves public office, by substituting the proper person.

Full Text of Rule 25

Text sizeJump to: (a) (b) (c) (d)

(a) Death.

(1) If a party dies and the claim is not thereby extinguished, the Court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of a summons, and may be served in any county. Unless the motion for substitution is made not later than 90 days after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.

(2) In the event of the death of one or more of the petitioners or of one or more of the respondents in an action in which the right sought to be enforced survives only to the surviving petitioners or only against the surviving respondents the action does not abate. The death shall be suggested upon the record and the action shall proceed in favor of or against the surviving parties.

(b) Incompetency. If a party becomes incompetent, the Court upon motion served as provided in subdivision (a) of this Rule may allow the action to be continued by or against that party's representative.

(c) Transfer of Interest. In case of any transfer of interest, the action may be continued by or against the original party, unless the Court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. Service of the motion shall be made as provided in subdivision (a) of this Rule.

(d) Public Officers; Death or Separation From Office.

(1) When an officer of the State of Delaware, a county, city or other governmental agency is a party to an action in an official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and the successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the situation.

(2) When an officer of the State of Delaware, county, city or other governmental agency files an action or an action is filed against the official in the official capacity, the official may be described as a party by the official title rather than by name; but the Court may require the name to be added.

End

Plain-English Summary

Death. If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion may be made by any party or by the successors or representatives of the deceased. Where the right sought to be enforced survives only to the surviving parties, the action proceeds in their favour without substitution.

The qualification is the whole of it: some claims die with the person and some do not, and this rule governs only the second kind.

Incompetency. If a party becomes incompetent, the court on motion may allow the action to be continued by or against that party's representative.

Transfer of interest. The action may continue by or against the original party unless the court, on motion, directs the person to whom the interest was transferred to be substituted or joined. The default is that nothing changes — a transfer of the underlying interest does not by itself reshape the caption.

Public officers. Where an officer of the State, a county, a city or another governmental agency is a party in an official capacity and dies, resigns or otherwise ceases to hold office during the action, the rule provides for the successor to take their place, and for an action brought by or against an official in that capacity to continue.

Frequently Asked Questions

What happens if a party dies during a Delaware Family Court case?

If the claim is not extinguished by the death, the court may order substitution of the proper parties, on motion by any party or by the deceased's successors or representatives.

What if the right only survives to the other parties?

Then the action proceeds in favour of or against the surviving parties without substitution.

What if a party transfers their interest?

The action may be continued by or against the original party, unless the court on motion directs the transferee to be substituted or joined.

Source & verification. The rule text and amendment history are reproduced verbatim from the Delaware Family Court Rules of Civil Procedure (Fam. Ct. Civ. R. 25), and every rule has been checked word for word against the Delaware Family Court’s own published edition of these rules. Current through June 1, 2026. The plain-English summary is original and written by us. Last verified September 9, 2026. · Official source

Also known as: substitution of parties Delawareparty died during case DelawareFam. Ct. Civ. R. 25