Revival of an Action

views updated


A mechanism of legal procedure that operates at thepleadingstage of litigation to subsequently renew an action that has been abated, terminated, or suspended for reasons other than the merits of the claim.

Lawsuits abate primarily because of the death of a party. In the past, under common law, a lawsuit terminated automatically whenever a party died. This rule was part of the sub-stance of the law involved and was not merely a matter of procedure. Whether the cause of action abated depended on whether the lawsuit was considered personal to the parties. Contract and property cases were thought to involve issues separate from the parties themselves. They were not personal and did not necessarily end on the death of a party. Personal injury cases, including claims not only for physical assault or negligent injuries inflicted on the body but also other injuries to the person, such as libel, slander, and malicious prosecution, were considered personal and abated when one of the parties died.

Today most lawsuits do not abate. Statutes permit the revival of a lawsuit that was pending when a party died. Personal representatives, such as executors and administrators, may be substituted for the deceased party, and the lawsuit may continue. These are not the same as survival statutes, which permit the maintenance of a lawsuit on behalf of a person who has died, whether it began before the deceased's death or not. A lawsuit can be revived only if the underlying cause of action, the ground for the suit, continues to have a legal existence after the party's death. Revival statutes vary from state to state.

Matrimonial actions do not usually fall within the scope of revival statutes. An action for divorce or separation is considered entirely personal and generally cannot be maintained after the death of a spouse. Different states sometimes make exceptions to settle certain questions of property ownership. The annulment of a marriage after the death of an innocent spouse may be permitted if it is clear that the marriage resulted from fraud and the perpetrator of the fraud would inherit property she would otherwise not be allowed to take.


Abatement of An Action.