When the legal successor fails to appear and substitute himself for the deceased party within the delay allowed in the summons, on ex parte written motion of any other party, the court may:
Art. 804.Same; Effect of Failure of Legal Successor to Appear
Title III. Parties · Chapter 5. Substitution of Parties · Last amended 1968 · Last verified July 30, 2026
In one sentenceArticle 804 lets the court dismiss the action against a deceased plaintiff, or appoint an attorney to represent an unserved deceased defendant's legal successor, when that successor fails to appear and substitute within the time the summons allows.
Full Text of Art. 804
(1) Dismiss the action as to the deceased party, with or without prejudice, if the deceased was a plaintiff; or
(2) When the legal successor of a deceased defendant has not been served by personal or domiciliary service with summons to appear and substitute, appoint an attorney at law to represent such legal successor, and the action shall be proceeded with contradictorily against the attorney at law.
Amendment History
Amended by Acts 1968, No. 123, §1.
Plain-English Summary
Articles 802 and 803 set up a summons compelling a deceased party's legal successor to appear and substitute into the case. Article 804 addresses what happens when the successor does not show up within the time the summons allowed.
Any other party can bring the problem to the court by ex parte written motion, and the available remedy depends on which side of the case the deceased party was on. If the deceased was a plaintiff, the court may dismiss the action as to that deceased party, with or without prejudice — recognizing that no one has stepped forward to keep pursuing that claim.
If the deceased was a defendant, and the legal successor has not been served by personal service (handed the summons directly) or domiciliary service (left at the successor's home with a qualified person there), the court may instead appoint an attorney to represent the absent legal successor. The case then proceeds contradictorily against that attorney — meaning as an adversarial matter, with the attorney able to appear, respond, and be heard on the successor's behalf, rather than letting the case stall for lack of a defendant.
Frequently Asked Questions
What happens if a deceased plaintiff's legal successor never appears to substitute in?
Under Article 804, the court may dismiss the action as to that deceased plaintiff, either with or without prejudice, on ex parte motion of any other party.
What happens if a deceased defendant's legal successor does not appear?
If the legal successor has not been served by personal or domiciliary service, the court may appoint an attorney to represent the legal successor, and the case proceeds contradictorily against that attorney standing in for the successor.
What does it mean for a case to proceed contradictorily against an appointed attorney?
It means the case continues as an adversarial proceeding in which the appointed attorney can appear, respond, and be heard on the legal successor's behalf, rather than the claim going unanswered because no successor has come forward.
What is the difference between personal service and domiciliary service?
Personal service means the summons is handed directly to the person being served. Domiciliary service means it is left at that person's home with a qualified person found there. Article 804's attorney-appointment option applies only when neither method reached the legal successor.
Source & verification. Article text is reproduced verbatim from
the vLex (Louisiana Code of Civil Procedure, 2026 Edition). Enacted by the Louisiana Legislature.
Last verified July 30, 2026.
· Official source
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