Most of the time when we think of filing a lawsuit against another driver for having caused a drunk driving accident, we think in terms of suing the driver personally. But what happens if the drunk driver dies in the accident? Does that preclude a claim against that person?
The answer to that question is, with one important caveat, “No.” Ohio law allows an injured person to file a lawsuit against the estate of another person for negligence-caused injuries. But there are additional considerations that you and your personal injury attorney should be aware of which can have a significant bearing on your ability to recover damages if you prevail in your civil lawsuit for negligence.
When a person dies, his estate goes into probate and ordinarily an executor or administrator is assigned to handle the estate’s affairs, including creditor and legal claims that arose against the decedent prior to his death. What you need to be aware of is that probate matters are distinct from civil liability matters in that probate claims have a time limit within which you need to make a claim against the estate that is different from the statute of limitations for a personal injury action.
The Ohio personal injury statute of limitations is two years. But the time within which you must notify an estate in probate of a claim against it is only six months. Failure to present such notice bars a claim, including a tort cause of action, against the estate (although it may still be possible to file a lawsuit against an insurance policy of the decedent after the six months have passed, as it is at least arguable that the insurance policy is not an asset of the estate).
Although this post only provides a brief look at the issue of filing a lawsuit against a decedent’s estate, this six-month window is why, if you have been injured in an accident with a drunk driver and that person dies either in the accident or as a result of it, you should contact a personal injury attorney right away. Delay in taking action to protect your rights can have serious consequences for you, sooner than you may realize.