XIX. Survivorship and Wrongful Death

• Library: Sword and Shield: A Practical Approach to Section 1983 Litigation (ABA) (2015 Ed.)

XIX. SURVIVORSHIP AND WRONGFUL DEATH

A. Survivorship

The survivorship of § 1983 claims is not covered by federal law. In Robertson v. Wegmann,⁴¹¹ the Supreme Court held that to remedy this deficiency in federal law, 42 U.S.C. § 1988(a) requires federal courts to borrow state survivorship law, as long as the state survivorship policy is not inconsistent with the policies of § 1983. The Court in Robertson ruled that the mere fact that the particular plaintiff's § 1983 claim abates under state law does not mean that the state law is inconsistent with the policies of § 1983. Rather, whether state survivorship law is compatible with the policies of § 1983 depends upon whether that state law is generally hospitable to the...