Rule 25 - Substitution of Parties(a) Death.(1)Substitution if the Claim Is Not Extinguished. If a party dies and the claim is not extinguished, the Court may order substitution of the proper party. A motion for substitution may be made by any party or by the decedent's successor or representative. If the motion is not made within 90 days after service of a statement noting the death, the action by or against the decedent must be dismissed.(2)Continuation Among the Remaining Parties. After a party's death, if the right sought to be enforced survives only to or against the remaining parties, the action does not abate but proceeds in favor of or against the remaining parties. The death should be noted on the record.(3)Service. A motion to substitute must be served on the parties as provided in Rule 5 and on nonparties as provided in Rule 4. A statement noting death must be served in the same manner. An attorney who represented the deceased party may file the notification of death, which withdraws the appearance of the attorney, other attorneys from the same firm, and any attorneys admitted pro hac vice from the representation of the deceased party. Any statement noting death should identify the decedent's successor or representative, and that person's attorney, if any.(b) Incompetency. If a party becomes incompetent, the Court may, on motion, permit the action to be continued by or against the party's representative. The motion must be served as provided in Rule 25(a)(3).(c) Transfer of Interest. If an interest is transferred, the action may be continued by or against the original party unless the Court, on motion, orders the transferee to be substituted in the action or joined with the original party. The motion must be served as provided in Rule 25(a)(3).(d) Public Officers; Death or Separation from Office. An action does not abate when a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending. The officer's successor is automatically substituted as a party. Later proceedings should be in the substituted party's name, but any misnomer not affecting the parties' substantial rights must be disregarded. The Court may order substitution at any time, but the absence of such an order does not affect the substitution.Amended September 25, 2023, effective 9/25/2023.Comment
In 2023, Rule 25 was revised to align its language in certain respects with Federal Rule of Civil Procedure 25 so that authorities interpreting the federal rule could be cited more easily as persuasive authority for the interpretation of Rule 25.
Except as noted, no substantive change in the interpretation of the rule was intended, and prior Delaware authorities interpreting the rule remain applicable.
The revision moved the contents of prior Rule 25(d)(2) to Rule 17.
The revision changes the procedures for giving notice of a party's death and the effect on an attorney's representation.