2-1008.Abatement; change of interest or liability; substitution of parties.
Article II. Civil Practice · Part 10. Pre-trial Steps · Last amended 1997 · Last verified July 20, 2026
In one sentenceSection 2-1008 keeps a lawsuit alive through marriage, bankruptcy, assignment, death, legal disability, or a change in who holds a public office or trust, by letting the court substitute or add the right parties — including, when a party dies, a special representative to prosecute or defend the action without opening a full estate.
(a)Change of interest or liability. If by reason of
marriage, bankruptcy, assignment, or any other event occurring after the commencement of a cause or proceeding, either before or after judgment, causing a change or transmission of interest or liability, or by reason of any person interested coming into existence after commencement of the action, it becomes necessary or desirable that any person not already a party be before the court, or that any person already a party be made party in another capacity, the action does not abate, but on motion an order may be entered that the proper parties be substituted or added, and that the cause or proceeding be carried on with the remaining parties and new parties, with or without a change in the title of the cause.
(b)Death. If a party to an action dies and the action is one which survives, the proper party or parties may be substituted by order of court upon motion as follows:
(1)If no petition for letters of office for the decedent's estate has been filed, the court may appoint a special representative for the deceased for the purpose of prosecuting the action. The appointment shall be on verified motion of any party who appears entitled to participate in the deceased's estate, reciting the names and last known addresses of all known heirs and the legatees and executor named in any will that has been filed. The court's determination that a person appears entitled to participate in the deceased's estate shall be solely for purposes of this Section and not determinative of rights in final disposition. Within 90 days after appointment, the special representative shall notify the heirs and legatees of the following information by mail: that an appointment has been made, the court in which the case was filed, the caption of the case, and a description of the nature of the case. The special representative shall publish notice to unknown heirs and legatees as provided in the Probate Act of 1975. If a will is filed within 90 days after the appointment of the special representative, the same notice shall be given to any additional executors and legatees named in the will. At any time that an estate is opened with a representative other than the special representative, the court may upon motion substitute the representative for the special representative. In this case, the court shall allow disbursements and fees of the special representative and his or her attorney as a claim against any proceeds received. The proceeds of any judgment or settlement shall be distributed under the provisions of the Probate Act of 1975. This paragraph (1) does not apply to actions pending under the Wrongful Death Act.
(2)If a person against whom an action has been brought dies, and the cause of action survives and is not otherwise barred, his or her personal representative shall be substituted as a party. If no petition has been filed for letters of office for the deceased's estate, the court, upon the motion of a person bringing an action and after the notice to the party's heirs or legatees as the court directs and without opening an estate, may appoint a special representative for the deceased party for the purposes of defending the action. If a party elects to have a special representative appointed under this paragraph (2), the recovery shall be limited to the proceeds of any liability insurance protecting the estate and shall not bar the estate from enforcing any claims that might have been available to it as counterclaims. If a motion to substitute is not filed within 90 days after the death is suggested of record, the action may be dismissed as to the deceased party. In the event of the death of a party in an action in which the right sought to be enforced survives only as to the remaining parties to the action, the action does not abate. The death shall be suggested of record and the action shall proceed in favor of or against the remaining parties.
No action brought for the use of another abates by reason of the death of the plaintiff whose name is used but may be maintained by the party for whose use it was brought in his or her own name upon suggesting the death of record and the entry of an order of substitution.
(c)Legal disability. If a party is declared to be a person under legal disability, that fact shall be suggested of record and the prosecution or defense shall be maintained by his or her representative, guardian ad litem or next friend, as may be appropriate.
(d)Trustees; public officers. If any trustee or any public officer ceases to hold the trust or office and that fact is suggested of record, the action shall proceed in favor of or against his or her successor.
(e)Service of process. Parties against whom relief is sought, substituted under subsection (a) hereof, shall be brought in by service of process. Service of process on parties substituted under subsections (b), (c), and (d) hereof is not required, but notice shall be given as the court may direct.
Plain-English Summary
Section 2-1008 keeps a case moving even when the people involved in it change. Its general rule covers events after a case begins — marriage, bankruptcy, assignment, or any other change or transmission of interest or liability, including a new interested person coming into existence — that make it necessary or desirable to bring in a new party or change a party's capacity. The action does not abate; on motion, the court can substitute or add the proper parties and carry the case forward, with or without changing the case's title.
Death gets its own detailed treatment. When no estate has been opened, the court can appoint a special representative to prosecute the action on behalf of a deceased plaintiff, on a verified motion from someone who appears entitled to participate in the estate, and that special representative must notify heirs and legatees by mail within 90 days and publish notice to unknown heirs and legatees. This special-representative option for a deceased plaintiff does not apply to actions pending under the Wrongful Death Act, which substitutes parties through its own procedure. On the defense side, if a defendant dies and no estate has been opened, the court can likewise appoint a special representative to defend the case without opening an estate — but if a party chooses that route, recovery is limited to the proceeds of any liability insurance protecting the estate, though it does not bar the estate from later pursuing its own counterclaims. Either way, a motion to substitute generally must be filed within 90 days after the death is suggested of record, or the action may be dismissed as to the deceased party; where the surviving right belongs only to the remaining parties, the case does not abate at all, and the death is merely suggested of record.
Legal disability and changes in public office or trusteeship get more direct handling. If a party is declared under a legal disability, that fact is suggested of record and a representative, guardian ad litem, or next friend carries on the case. If a trustee or public officer stops holding the position, and that fact is suggested of record, the action proceeds in favor of or against the successor automatically.
Service requirements differ by category. New parties brought in under the general change-of-interest rule in subsection (a) must be served with process like any other party against whom relief is sought. Parties substituted for death, legal disability, or a change in trusteeship or public office do not need to be served, though the court can direct whatever notice it considers appropriate.
Frequently Asked Questions
Does a lawsuit end automatically if a party dies while it's pending?
No. Section 2-1008 provides for substitution of the proper party — typically a personal representative or, where no estate has been opened, a special representative — rather than automatic dismissal, so long as the action is one that survives the party's death.
What is a “special representative” under Section 2-1008, and when is one appointed?
A person the court appoints to prosecute or defend a case on behalf of a deceased party when no petition for letters of office has been filed for that person's estate, letting the case proceed without first opening a full probate estate. The option to appoint one to prosecute on behalf of a deceased plaintiff does not apply to actions pending under the Wrongful Death Act.
Is there a deadline to substitute parties after a party's death?
Generally yes. If a motion to substitute is not filed within 90 days after the death is suggested of record, the action may be dismissed as to the deceased party.
Does the estate have to open a formal probate case before the lawsuit can continue?
Not necessarily. Section 2-1008 lets the court appoint a special representative to prosecute or defend the action without opening an estate, though if an estate is later opened with its own representative, that representative can be substituted for the special representative.
Do newly substituted parties have to be served with process?
It depends on why they were substituted. Parties brought in under the general change-of-interest provision in subsection (a) must be served with process. Parties substituted because of death, legal disability, or a change in trusteeship or public office do not need service, only whatever notice the court directs.
Amendment History
(Source: P.A. 90-111, eff. 7-14-97.)
Source & verification. Section text and amendment history are
reproduced verbatim from the Illinois Compiled Statutes, published by the
Illinois Compiled Statutes, Illinois General Assembly / Legislative Reference Bureau. Last verified July 20, 2026.
· Official source
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