803.10 Substitution of parties.

(1) Death.

(a) If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in s. 801.14 and upon persons not parties in the manner provided in s. 801.11 for the service of a summons. Unless the motion for substitution is made not later than 90 days after the death is suggested on the record by service of a statement of the facts of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.

(b) In the event of the death of one or more of the plaintiffs or of one or more of the defendants in the action in which the right sought to be enforced survives only to the surviving plaintiffs or only against the surviving defendants, the action does not abate. The death shall be suggested upon the record and the action shall proceed in favor of or against the surviving parties.

(2) Incompetency. If a party is adjudicated incompetent, the court upon motion served as provided in sub. (1) may allow the action to be continued by or against the party's representative.

(3) Transfer of interest. In case of any transfer of interest, the action may be continued by or against the original party unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. Service of the motion shall be made as provided in sub. (1).

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

(a) When a public officer, including a receiver or trustee appointed by virtue of any statute, is a party to an action in an official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and the successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution.

(b) When a public officer sues or is sued in an official capacity, the public officer may be described as a party by the official title rather than by name; but the court may require the officer's name to be added.

(5) Death after verdict or findings. After an accepted offer to allow judgment to be taken or to settle pursuant to s. 807.01, or after a verdict, report of a referee or finding by the court in any action, the action does not abate by the death of any party, but shall be further proceeded with in the same manner as if the cause of action survived by law; or the court may enter judgment in the names of the original parties if such offer, verdict, report or finding be not set aside. But a verdict, report or finding rendered against a party after death is void.

History: Sup. Ct. Order, 67 Wis. 2d 585, 652 (1975); 1975 c. 200, 218; 1993 a. 486; 2005 a. 387.

A letter to the court and opposing counsel stating that the plaintiff had died was not a “suggestion of death" under sub. (1) (a). Wheeler v. General Tire & Rubber Co., 142 Wis. 2d 798, 419 N.W.2d 331 (Ct. App. 1987).

A “suggestion of death" that failed to identify the proper party to substitute for the deceased did not trigger the running of the 90-day period under sub. (1) (a). Wick v. Waterman, 143 Wis. 2d 676, 421 N.W.2d 872 (Ct. App. 1988).

Service of the suggestion of death only on the deceased plaintiff's attorney was insufficient to activate the 90-day period in which a sub. (1) (a) motion for substitution is to be filed. Sub. (1) (a) does not require service of the suggestion of death on all interested nonparties in every case but requires a determination of what nonparties should be served in that case and how burdensome the task will be to protect the interests of all persons and move the litigation toward a fair and expeditious resolution. Schwister v. Schoenecker, 2002 WI 132, 258 Wis. 2d 1, 654 N.W.2d 852, 01-2621.