The Deadly Deadline for Suing Decedents: California’s Toughest Statute of Limitations in Trust, Probate, Estate, and Civil Cases
By Stewart R. Albertson on April 30th, 2012
Posted in Breach of Contract, Litigation, Probate & Estate Litigation, Trust Litigation
Statutes of limitations scare me—and they should scare you too. If you don’t file a lawsuit within the applicable statute of limitations, you’re done, case over. For example, legal malpractice cases must be filed within one year, most personal injury actions within two years, and medical malpractice actions within one or three years. That analysis changes if you intend to sue a public entity, and in that case, you may only have six months. Confused? I know I am.
Once you determine which statute of limitation applies to your case, you may be surprised to learn that in California all claims are subject to the toughest statute of limitation when suing someone who has died.
Under California law, there’s an absolute one-year statute of limitations to bring a lawsuit against someone who’s died—no matter the underlying statute of limitations. For example, you generally have four years to bring a lawsuit for breach of written contract. But if the person breaching your contract dies, you no longer have four years—you only have one year to file suit. This one-year statute comes up all the time in California Trust, Probate, Estate, and Civil litigation.
For example, there are times when a married couple creates a revocable Trust that cannot be revoked (in whole or in part) by the surviving spouse after the death of the first spouse. Yet, notwithstanding this requirement, the surviving spouse may take all the assets out of the revocable Trust and transfer them to a new Trust she creates. This is a breach of Trust because it violates the Trust terms and the new Trust may favor different beneficiaries than the old one did. Maybe the old Trust made gifts to the husband’s children, whereas the new Trust only favors the wife’s children. So the husband’s children sue the successor Trustee of wife’s new Trust after wife dies.
But that is a mistake. In fact, it’s a fatal mistake because the successor Trustee has no legal liability for the wife’s breach of Trust. The correct procedure is to sue the deceased wife’s estate. But under California’s statute of limitation for suing deceased individuals, a lawsuit against wife’s estate must be filed before the one-year anniversary of her death. Most of the time, husband’s children miss this deadline and file, if at all, after the statute has run. Too late—case over. The one-year statute of limitations will defeat the deceased husband’s children from recovering the property.
Thus, the one-year statute of limitations can be a powerful weapon to defeat lawsuits, or an impossible hurdle to overcome in prosecuting a lawsuit, against a decedent—depending on which side of the case you find yourself. Even where longer statutes of limitations would otherwise apply to a case if the decedent had continued living, this one-year limitation prevails. You are now forewarned!
