§ 71.008.Death of Defendant

The provision that keeps a claim alive when the wrongdoer dies too.

Subsection (a) covers both timings. If a defendant dies while the action is pending, or if the individual against whom the action may have been instituted dies before the action is begun, the executor or administrator of the estate may be made a defendant, and the action may be prosecuted as though the defendant or individual were alive.

The second limb matters most. Fatal collisions frequently kill the person at fault as well, and without this provision a family would have a wrongful death claim and nobody to bring it against.

"As though the defendant were alive" is a complete answer on the merits. The estate defends the claim as the deceased would have — same duty, same breach, same damages — and death is not a defence to anything.

Subsection (b) is about collection, and it is the practical limit. A judgment for the plaintiff is paid in due course of administration, which means it takes its place among the claims against the estate under the Estates Code and is paid according to that scheme.

So a judgment is not a right to seize assets. If the estate is insolvent, the judgment is worth what the estate can pay, which is often why the real target is a liability insurer rather than the estate itself.

Read it with the survival provision, which addresses the mirror-image case of the injured person dying, and with the venue provision allowing suit where the decedent’s negligent act occurred rather than only where the estate is administered.