Substitution after a death in Delaware: ninety days from the suggestion of death, or the claim is dismissed

When a party to a Delaware case dies, nothing happens automatically — and then a clock starts that ends the claim.

Rule 25(a)(1): "Unless the motion for substitution is made not later than 90 days after the death is suggested upon the record … the action shall be dismissed as to the deceased party."

The ninety days do not run from the death. They run from the suggestion of death being served, which is an act any party can perform — including the other side.

The ninety days

Del. Super. Ct. Civ. R. 25(a)(1):

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 in all cases except those in which an application for an interlocutory appeal has been made.

Three things follow.

Nothing starts until someone serves the suggestion. A death known to everyone but never suggested on the record does not begin the ninety days. That cuts both ways — it preserves the claim, but it also means an opponent can start the clock whenever it suits them.

The suggestion must be served the same way as the motion. That is the meaning of "as provided herein for the service of the motion": Rule 5 for parties, and Rule 4 service of a summons for non-parties. A suggestion of death only filed, and not served on the successors, has not been made in the manner the rule requires.

Non-parties need real process. The successors or representatives are usually not yet parties, so the motion and notice of hearing go to them under Rule 4 — "and may be served in any county."

When a death does not stop anything

Rule 25(a)(2):

In the event of the death of one or more of the plaintiffs or of one or more of the defendants in an action in which the right sought to be enforced survives only to the surviving plaintiffs or only against the surviving defendants, 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.

Where the right survives only to or against the survivors, there is no substitution to make. The death is still suggested upon the record, but the case simply continues.

So the first question after a death is not "who substitutes" but "does this right survive only to the others?"

Incompetency

Rule 25(b):

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

The service requirements of (a) carry over, but two things do not: there is no ninety-day deadline, and the consequence is permissive — the Court "may allow" continuation rather than dismissing.

For representation of an incompetent person generally, including the Court's mandatory duty to appoint a guardian ad litem, see Delaware joinder and intervention.

Transfer of interest

Rule 25(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.

This is the opposite of the death rule. Selling or assigning the claim mid-case changes nothing unless someone asks the Court to act — and even then the transferee may be added rather than swapped in.

Nobody is under a deadline here, and no dismissal follows from doing nothing.

Public officers

Rule 25(d)(1) removes the problem entirely for officials:

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 officer's 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 substitution.

No motion, no deadline, no risk. The substitution happens by operation of the rule and the paperwork is optional.

Rule 25(d)(2) lets an officer suing or sued in an official capacity "be described as a party by an official title rather than by name", though the Court may require the name be added.

Where this connects

Because the ninety days can be started by an opponent, watch the docket for a suggestion of death as closely as for any motion. If the deadline passes, the dismissal is of the claim as to that party — and the route back would be a Rule 60(b) motion, which in Delaware states no deadline of its own. See setting aside a Delaware default judgment.

For the service rules the suggestion and motion must follow, see responding to a Delaware complaint.

If a case has gone quiet while a substitution is sorted out, note that six months without a docket entry starts a want-of-prosecution notice. See Delaware dismissal for want of prosecution.

How Delaware compares

A short checklist

1. Watch for a suggestion of death on the record. It is what starts the ninety days, and any party can file it.
2. Check first whether the right survives only to the surviving parties. If so, no substitution is needed.
3. Serve the suggestion properly — Rule 5 on parties, Rule 4 on non-parties — or it may not start the clock.
4. Serve the motion and notice of hearing on the successors under Rule 4, in any county.
5. Do not wait for an estate to be opened if the ninety days are running. Any party may move.
6. On incompetency there is no deadline, but the same service rules apply.
7. A transfer of interest needs no action unless you want the transferee substituted or joined.
8. Do not bother chasing an order for a public officer's successor. The substitution is automatic.

Where these rules live

• Del. Super. Ct. Civ. R. 25 — Substitution of parties
• Del. Super. Ct. Civ. R. 17 — Parties plaintiff and defendant; capacity
• Del. Super. Ct. Civ. R. 19 — Joinder of persons needed for just adjudication
• Del. Super. Ct. Civ. R. 41 — Dismissal of actions

This page explains what the rules say. It isn't legal advice, and whether a particular claim survives a death is governed by law this site doesn't cover.