13-209.Death of party.

Article XIII. Limitations · Part 2. Personal Actions · Last amended 1997 · Last verified July 20, 2026

In one sentenceSets separate rules for when a plaintiff or a defendant dies before a limitations period runs, including a special-representative procedure when no estate has been opened and a rule for suing a defendant whose death was unknown.

Full Text of 735 ILCS 5/13-209

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(a) If a person entitled to bring an action dies before the expiration of the time limited for the commencement thereof, and the cause of action survives: (1) an action may be commenced by his or her representative before the expiration of that time, or within one year from his or her death whichever date is the later;

(2) if no petition for letters of office for the decedent's estate has been filed, the court may appoint a special representative for the deceased for the purpose of prosecuting the action. The appointment shall be on verified motion of any party who appears entitled to participate in the deceased's estate, reciting the names and last known addresses of all known heirs and the legatees and executor named in any will that has been filed. The court's determination that a person appears entitled to participate in the deceased's estate shall be solely for purposes of this Section and not determinative of rights in final disposition. Within 90 days after appointment, the special representative shall notify the heirs and legatees of the following information by mail: that an appointment has been made, the court in which the case was filed, the caption of the case, and a description of the nature of the case. The special representative shall publish notice to unknown heirs and legatees as provided in the Probate Act of 1975. If a will is filed within 90 days after the appointment of the special representative, the same notice shall be given to any additional executors and legatees named in the will. At any time that an estate is opened with a representative other than the special representative, the court may upon motion substitute the representative for the special representative. In this case, the court shall allow disbursements and fees of the special representative and his or her attorney as a claim against any proceeds received. The proceeds of any judgment or settlement shall be distributed under the provisions of the Probate Act of 1975. (b) If a person against whom an action may be brought dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, and is not otherwise barred:

(1) an action may be commenced against his or her personal representative after the expiration of the time limited for the commencement of the action, and within 6 months after the person's death;

(2) if no petition has been filed for letters of office for the deceased's estate, the court, upon the motion of a person entitled to bring an action and after the notice to the party's heirs or legatees as the court directs and without opening an estate, may appoint a special representative for the deceased party for the purposes of defending the action. If a party elects to have a special representative appointed under this paragraph (2), the recovery shall be limited to the proceeds of any liability insurance protecting the estate and shall not bar the estate from enforcing any claims that might have been available to it as counterclaims. (c) If a party commences an action against a deceased person whose death is unknown to the party before the expiration of the time limited for the commencement thereof, and the cause of action survives, and is not otherwise barred, the action may be commenced against the deceased person's personal representative if all of the following terms and conditions are met:

(1) After learning of the death, the party proceeds with reasonable diligence to move the court for leave to file an amended complaint, substituting the personal representative as defendant.

(2) The party proceeds with reasonable diligence to serve process upon the personal representative.

(3) If process is served more than 6 months after the issuance of letters of office, liability of the estate is limited as to recovery to the extent the estate is protected by liability insurance.

(4) In no event can a party commence an action under this subsection (c) unless a personal representative is appointed and an amended complaint is filed within 2 years of the time limited for the commencement of the original action.

End

Plain-English Summary

Death complicates a limitations deadline, and this section addresses it from both sides. When a person entitled to sue dies before the filing deadline passes, and the claim survives, the representative may sue before that deadline or within one year of the death, whichever is later. If no estate has been opened, the court may appoint a special representative on a verified motion from someone who appears entitled to share in the estate, with notice sent to heirs and legatees and, for unknown heirs, publication under the Probate Act.

When the potential defendant dies before the deadline passes, and the claim survives and isn't otherwise barred, the plaintiff may sue the personal representative within 6 months after the death, even if the normal deadline has already expired. If no estate has been opened, the court may appoint a special representative to defend the case without opening a full estate, but recovery is then limited to available liability insurance and doesn't bar the estate from raising its own counterclaims.

Subsection (c) covers a plaintiff who sues a defendant whose death wasn't yet known. That plaintiff can proceed against the personal representative instead, but only by moving with reasonable diligence to substitute the representative after learning of the death, serving the representative with reasonable diligence, accepting an insurance-only recovery if service happens more than 6 months after letters of office issue, and getting a personal representative appointed and an amended complaint filed within 2 years of the deadline for the original action.

Frequently Asked Questions

What happens if the plaintiff dies before the statute of limitations runs?

The representative may sue before the original deadline, or within one year of the death, whichever is later.

What happens if the defendant dies before the statute of limitations runs?

The plaintiff may sue the personal representative within 6 months after the death, even after the original deadline has passed.

What if no estate has been opened for a deceased plaintiff or defendant?

The court may appoint a special representative — for a deceased plaintiff, on motion of someone entitled to share in the estate; for a deceased defendant, to defend the action without opening a full estate.

What if I sue someone without knowing they had already died?

You may proceed against the personal representative if you move with reasonable diligence to substitute after learning of the death, serve the representative diligently, and get one appointed with an amended complaint filed within 2 years of the original deadline.

Is recovery limited when a special representative defends a deceased defendant's estate?

Yes. Recovery is limited to the proceeds of any liability insurance protecting the estate.

Amendment History

(Source: P.A. 90-111, eff. 7-14-97.)

Source & verification. Section text and amendment history are reproduced verbatim from the Illinois Compiled Statutes, published by the Illinois Compiled Statutes, Illinois General Assembly / Legislative Reference Bureau. Last verified July 20, 2026. · Official source

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