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# 28 - Representing the Dead Client

Monograph # 28                                                             (March,  2011)

Representing the Dead Client.......

("We are without power to divorce a dead man from his widow.")

© Lawrence D. Gorin, Attorney at Law, Portland, Oregon    

    It is not quite correct for the family law lawyer to say "I represent the deceased Husband."  You don't.  In fact, you don’t even have a client, at least not any longer.  He's DEAD, remember??  Once he is dead, your role as his attorney is over.  After all, your role was to provide counsel and advice.  That's why he hired you.  But now that he's dead, you are going to have a difficult providing him with counsel and advice.  What are you going to do?  Send him a letter?  Make a phone call and tell him to come in for an office conference??

    As a lawyer, you are an agent for your client, and the client is the principal.  The authority of an agent is no greater than that of his/her principal.  (You remember that from law school, right?)  Indeed, there is virtually nothing that you as a lawyer can do for a client that the client could not legally do on his own. Corollary to that is the rule that says that if the client can't do something, than neither can the lawyer.  

    As matters now stand (or, rather, lay) your client (or, rather, your FORMER client) cannot take any action to protect or assert his legal rights.  And you are in no position and have no authority, therefore, to do so on his behalf.  (By the way, what would be the present situation if the husband never hired a lawyer and acted "pro se" throughout the divorce proceeding??  What then?)

       In the event the former wife were to file a motion seeking to vacate the dissolution judgment, how is she going to get her former husband served?  She cannot accomplish legal service by directing the papers to you, and you have no authority to accept service of legal papers on behalf of a client who is no longer alive.  After all, once you have received the papers, what are YOU supposed to then do?  Send them on the client?  Confer with the client as to what responsive action the client wants to take?  (Again, let's not forget that he's DEAD.)

       Suppose an appeal had been taken from the dissolution judgment and the client died while the appeal was pending?  ORS 107.115(3)(a) provides the answer.  It says:

    ORS 107.115((3)(a).  The Court of Appeals or Supreme Court shall continue to have jurisdiction of an appeal pending at the time of the death of either party. The appeal may be continued by the personal representative of the deceased party."

    Whether it be the continuation of a pending appeal, or an ORCP 71 motion to vacate a judgment, a dead litigant cannot take any action nor can the attorney who represented the dead litigant prior to the litigant's death.  The legal action --- whatever it may be --- must be continued by or directed to the PERSONAL REPRESENTATIVE of the deceased party, not to or by a lawyer who represented the deceased party when the deceased party was alive.

      If ex-wife wants to take legal action to vacate the dissolution judgment, with husband now being dead, she will have to direct her motion to the decedent's personal representative.  If there's no PR now existing, she will have to file a proceeding in probate court to get one appointed.  

     (If she's already filed the motion and served a copy on you, you ought to send it right back along with a polite cover letter explaining that your authority as the client's lawyer terminated when the client died and that, while you appreciate the courtesy of having been provided with a copy of the motion, sending the papers to you does not constitute legal service and your receipt of the papers does not constitute acceptance of service.)

      By the way, was motion to vacate judgment accompanied by an Order to Show Cause?  Commanding husband to appear in court at a time and date certain to show cause, if any there be, why the relief sought should not be granted?  If so, and husband fails to appear, thereby disobeying a court order, can contempt proceedings then be pursued?  Perhaps the court should issue a bench warrant and tell the sheriff to go out arrest the decedent and bring him back to court?

    Now, on the merits of the claim, I suspect former wife will not get very far.  Oregon law gives great weight to the finality of a dissolution judgment, particularly the property divisions provisions thereof.  It is difficult enough to get such a judgment vacated while the opposing party is alive, and I suspect even more difficult when the opposing party is dead.

      To illustrate the point, take a look at Hansen and Hansen, 31 Or App 823, 571 P2d 568 (1977), in which wife appealed from the denial of her motion to vacate a decree of dissolution.  The decree was entered against her by default on April 26, 1976.  Her motion was filed on January 24, 1977.  It alleged that the decree should be set aside under ORS 18.160.  In the accompanying affidavit wife alleged in particular that the property settlement agreement incorporated in the decree was grossly inequitable; that she signed the agreement without knowledge of her rights and without legal counsel or advice, under duress and in fear for her life and physical well-being; that she was advised by husband not to seek legal counsel with regard to the dissolution; that she was "without knowledge of the law or of the business"; and that she was not notified of the date that the default decree was taken.

    In Hansen, the Court of Appeals (like the trial court) rejected wife’s argument and said the following, at 31 Or App at 829.  Said the court:

     "In this case, wife waited almost nine months before challenging the decree. During that time she actually helped carry out its provisions by signing necessary deeds. She has presented no new evidence and has explained her delay only by saying that it took her that long, as she phrased it in a deposition, "to figure out how much I'd been screwed."  * * * Although the property settlement may well have been inequitable in the sense that it was disproportionate, it was not shown to have been the product of husband's misconduct or overreaching.  Under these circumstances we find no abuse of discretion in the circuit court's refusal to vacate the decree."

     Relying on Carmichael v. Carmichael, 101 Or 172, 199 P 385 (1921), the court in Hansen also cautioned that the statutory provisions for vacating judgments "are not to be invoked so as to render judgments but temporary structures, to be torn down, remodeled or rebuilt whenever the builders feel competent to improve the original workmanship or design."  101 Or at 179.

     If a spouse dies prior to entry of the dissolution judgment, the court would have no authority to proceed any further.  As explained in Bauman v. Clark, 203 Or 193, 196, 272 P2d 214, 279 P2d 478 (1954 as to motion to dismiss, 1955 on the merits), "We are without power to divorce a dead man from his widow." (Presumably, a court is nowadays equally barred from divorcing a woman from her dead husband.)  Further, "Since we cannot declare the marriage dissolved, we are without statutory authority to determine the property rights of the parties."

     Further, of more recent vintage, in Trotts and Trotts, 170 Or App 714, 13 P3d 1035 (2000), the court said: "The statutes are explicit.  A judgment of dissolution is the jurisdictional predicate of any property division under ORS 107.105(1)(f).

     ORS 107.105(1) authorizes the court to adjudicate property rights of a husband and wife incident to dissolution of  marriage only when the court "renders a judgment."   As noted in Bauman v. Clark, "Since we cannot declare the marriage dissolved [if a spouse is dead], we are without statutory authority to determine the property rights of the parties."  203 Or at 196.

     OK.  With the foregoing in mind, go talk to your client and see how he wants you to handle his case.  (And then send him a bill for your legal advice.  Be sure to include a return envelope for his convenience.  Better make it prestamped, too.)   :-)

Attorney at Law
6700 S.W. 105th Ave., Suite 104
Beaverton, Oregon 97008
Phone:  503-716-8756
Fax:    503-646-1128