Rule 25.Substitution of parties

Current through January 1, 2025 · Last verified July 8, 2026

In one sentenceRule 25 governs what happens to a pending case when a party dies, becomes incompetent or incarcerated, transfers their interest, or (for a public officer sued in an official capacity) leaves office, generally allowing the case to continue with a substituted party rather than starting over.

Full Text of Rule 25

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

(a) Death.

(1) Substitution if the claim is not extinguished. If a party dies and the claim is not extinguished, the court may order substitution of the proper party. A motion for substitution may be made by any party or by the decedent's successor or representative. If the motion is not made within 90 days after service of a statement noting the death, the action by or against the decedent shall be dismissed.

(2) Continuation among the remaining parties. After a party's death, if the right sought to be enforced survives only to or against the remaining parties, the action does not abate, but proceeds in favor of or against the remaining parties. The death should be noted on the record.

(3) Service. A motion to substitute, together with a notice of hearing, shall be served on the parties as provided in Rule 5 and on nonparties as provided in Rule 4. A statement noting death shall be served in the same manner. Service may be made in any judicial circuit.

(b) Incompetency or incarceration. If a party becomes incompetent or becomes incarcerated, the court may, on motion, permit the action to be continued by or against the party’s representative. The motion shall be served as provided in Rule 25(a) (3).

(c) Transfer of interest. If an interest is transferred, the action may be continued by or against the original party unless the court, on motion, orders the transferee to be substituted in the action or joined with the original party. The motion shall be served as provided in Rule 25(a)(3).

(d) Public officers; death or separation from office.

An action does not abate when a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending. The officer's successor is automatically substituted as a party. Later proceedings should be in the substituted party's name, but any misnomer not affecting the parties' substantial rights shall be disregarded. The court may order substitution at any time, but the absence of such an order does not affect the substitution.

End

Amendment History

The current West Virginia Rules of Civil Procedure took effect January 1, 2025, as part of a rewrite that modernized the rules’ numbering and structure. West Virginia does not publish a per-rule amendment history inside the compiled rules text reproduced here. The text above is verified current through the source’s own January 1, 2025 update; for the underlying adopting order and any later amendments, see the West Virginia Judiciary’s compiled rules page.

Plain-English Summary

Lawsuits sometimes outlast the circumstances of the people who filed them. Rule 25 keeps a case moving when that happens. If a party dies and the claim survives that death, any party or the decedent's successor can move to substitute the proper person — but if nobody moves within 90 days after a statement noting the death is served, the case is dismissed as to that party. If the right being enforced survives only among the remaining parties, the action doesn't need a substitution at all; it continues in their names, with the death noted on the record.

The same continue-with-a-substitute approach applies if a party becomes incompetent or incarcerated (the court can permit the case to continue with that party's representative), or if a party transfers their interest in the dispute (the action can continue in the original party's name, or the court can substitute or add the transferee).

Public officers get their own rule: if an officer sued in an official capacity dies, resigns, or otherwise leaves office while the case is pending, the action doesn't abate at all — the successor is automatically substituted, and a misnomer that doesn't affect anyone's substantial rights is disregarded, whether or not the court ever enters a formal substitution order.

Frequently Asked Questions

What happens if a party dies while a lawsuit is pending?

If the claim survives the death, any party or the decedent's successor or representative can move to substitute the proper party. If no one moves within 90 days after a statement noting the death is served, the action is dismissed as to that party.

Does a lawsuit end if a party becomes incompetent or incarcerated?

No. The court can permit the action to continue by or against that party's representative.

What happens if a party transfers away their interest in the dispute during the case?

The action can continue in the original party's name, unless the court orders the transferee substituted in or joined with the original party.

What happens when a public officer being sued in an official capacity leaves office?

The action doesn't abate. The officer's successor is automatically substituted as a party, even without a formal court order.

Source & verification. The rule text is reproduced verbatim from the official West Virginia Rules of Civil Procedure (W. Va. R. Civ. P. 25). Prescribed by the Supreme Court of Appeals of West Virginia (W. Va. Const. art. VIII, § 3). The plain-English summary is original and written by us. Last verified July 8, 2026. · Official source

Also known as: substitution of partiesdeath of a party lawsuitsuccessor public officer