LHR case study: “Is the claimant still alive?” – when the other side brings the death of a party into civil proceedings
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How the other side turned a forwarded Instagram screenshot into the death of a party to civil proceedings, then asked us to do the investigating, and a few months later stopped believing its own news.
Let us be clear from the outset: we do not joke about anyone’s death. About written pleadings we occasionally do, and this article is about pleadings.
In civil litigation a great deal is alleged, denied and assumed. That comes with the job. It is less common, even for us, for the other side to ask whether our client is still alive at all. It is rarer still for them to order the answer from us first, then do their own research at the residents’ registration office, and finally conclude that they no longer trust their own question.
That is exactly what happened in one of our pending cases. The case is odd. But it shows rather well how a mere question can be used to shift work onto the other side, and why there is no need to accept that work.
Overview
- Death of a party in German civil proceedings: what happens to the case?
- The case: a profile picture, a screenshot and a “polite enquiry”
- Who has to establish whether the claimant is still alive?
- And then the other side doubts its own news
- Why would a defendant care whether the claimant is still alive?
- The pattern: a question that works like an allegation
- What should claimants in personality rights cases take from this?
- Conclusion: whoever only asks cannot demand anything
- Frequently asked questions on the death of a party in civil proceedings
- Further information
Death of a party in German civil proceedings: what happens to the case?
If a party who is represented by a lawyer dies, the civil proceedings simply continue for the time being. Under Section 246(1) of the German Code of Civil Procedure (Zivilprozessordnung, ZPO) there is no automatic interruption, and under Section 86 ZPO the lawyer’s authority to act does not end with the client’s death. The court only suspends the proceedings on application, and in the case of death that application may expressly also be made by the opposing party.
Things are different only if the deceased party had no lawyer. The proceedings are then interrupted under Section 239 ZPO until the heirs take them up. Before a German Regional Court (Landgericht) this hardly matters in practice, because representation by a lawyer is mandatory there.
For the opposing party this means: anyone who genuinely believes the claimant has died and therefore wants a pause in the proceedings has a tool of their own for it. They only need to use it. And whoever uses it must also set out the death to the court.
The case: a profile picture, a screenshot and a “polite enquiry”
In a current matter, LHR Rechtsanwälte of Cologne represents two claimants before the Regional Court of Stuttgart (Landgericht Stuttgart). The case concerns a video which, according to our submissions, the defendants recorded and spread on social media, and the consequences of that publication for the claimants. The proceedings are handled by our colleague Alisa Burnett. How the Regional Court of Stuttgart deals with secretly recorded videos online is described in an earlier case from interim proceedings.
In mid-May 2026 the court received a brief from the defendants’ lawyers that opened with a sentence one does not often read:
“… we politely enquire whether claimant no. 1 is still alive.”
They evidently sensed how that sounded, because the very next sentence says the enquiry is not meant to sound macabre but has a compelling reason. The compelling reason was a screenshot. According to the defendants, the female claimant had posted on Instagram that her husband had died and would be taken to the family grave for burial. The screenshot did indeed show a profile picture with a death notice. Where it came from, the brief revealed straight away: it had been “passed on to the defendant by third parties”.
Then came the actual sentence:
“Should this be correct, we apply for the proceedings to be stayed. The statement by claimant no. 2 is in any case taken seriously.”
What sticks in the reader’s mind: the claimant is dead, the case is over, and the other side has generously offered to let the matter rest. But that is not what was said. The defendants had not actually alleged anything. They had asked.
Who has to establish whether the claimant is still alive?
Not the claimant’s lawyer, at least not because the other side says so. Whoever wants to derive procedural consequences from the death of a party, such as a suspension of the proceedings, must set out that death to the court and, if in doubt, prove it, typically with a death certificate. A mere question does not oblige the other side to investigate anything.
In June 2026 the defendants clearly took a different view. The court had granted the claimants an extension of time, and the defendants protested firmly that an extension “of two months(!)” was unreasonable for them. In the same brief they then explained how, in their view, the question of the death should be cleared up, namely by us:
“Counsel for the claimants will surely be able to ask her client, claimant no. 2, whether her partner has actually died.”
If in doubt, she could make an enquiry at the civil registry office on the basis of a legitimate interest. And then comes a qualification we have printed out and pinned up: only, of course, once direct contact with the claimant himself had failed, by email, telephone or post.
So the first step is to ring the man and ask whether he has died. If he does not pick up, one may ask the registry office. In passing, the husband of the May brief had become the partner by June. The defendants were evidently not too particular about the details themselves.
Is a question from the other side an allegation that must be answered?
No. It is true that under Section 138(1) and (2) ZPO every party must respond fully and truthfully to the facts alleged by the opponent. But a question is not an allegation of fact. The defendants had expressly left open whether they considered the death to be true, and made their application conditional on exactly that.
That is convenient. Someone who only asks does not have to prove anything and cannot be pinned down afterwards. But they also cannot apply for anything that presupposes a fact they are not prepared to assert themselves.
It is different when the court asks. Whether proceedings are suspended or stayed is for the court to decide, and of course we respond to its orders. The other side, however, is not the court. And a claimant’s lawyer is not the defendants’ research department, not least because what she knows about her clients’ personal circumstances is covered by professional confidentiality under Section 43a(2) of the Federal Lawyers’ Act (Bundesrechtsanwaltsordnung, BRAO).
Stay or suspension: what is the difference?
A stay and a suspension sound similar, but they are different things. The court only orders a stay of proceedings (Ruhen des Verfahrens) under Section 251 ZPO if both parties apply for it and it is expedient, for example because settlement talks are under way. A suspension because of the death of a party (Aussetzung) under Section 246 ZPO, by contrast, can be applied for by one side alone, including the opponent.
In our case this difference is the key. In May the defendants had offered a stay, an instrument for which they need the claimants’ agreement and which they can refuse at any time. The suspension they could have applied for themselves, they did not apply for. For that, they would have had to assert the death.
And then the other side doubts its own news
In August 2026 the defendants asked the court to move the proceedings forward and to set a date for an oral hearing. Following a further court order, the claimants finally applied in September 2026 for exactly what the defendants had held out in May: a stay of the proceedings.
The reply came at the end of September, and it turns the story on its head, or perhaps back onto its feet:
“Evidently claimant no. 1 is trying to cover his tracks. According to admittedly unreliable information from the internet, claimant no. 1 is said to be [abroad] and still alive.”
Mind you: the same side that in May took a death notice “in any case seriously” now relies in September on information it itself describes as unreliable in order to assume the opposite. It has also done its own investigating in the meantime, entirely without the claimants’ lawyer. An extract from the population register had shown no mention of a death, and an extended enquiry was still pending. The defendants’ conclusion:
“We are therefore unable to apply for a stay of the proceedings.”
The result: the application the defendants themselves had offered in May fails in September for lack of their agreement. And the research they wanted to hand to the claimants in June, they did themselves in September. The proceedings remain pending before the Regional Court of Stuttgart; there is no decision.
Why would a defendant care whether the claimant is still alive?
Because the claimant’s death ends certain claims. According to the case law of the German Federal Court of Justice (Bundesgerichtshof, BGH), a claim for monetary compensation for a violation of general personality rights is in principle not inheritable, even if it has already been brought to court and the claimant dies before a final judgment (BGH, judgment of 23 May 2017, VI ZR 261/16; previously BGH, judgment of 29 April 2014, VI ZR 246/12). The heirs cannot pursue it.
The BGH bases this on the function of monetary compensation. It is meant to give satisfaction to the injured person, and satisfaction can no longer be given to someone who has died. How far this goes was shown by the dispute over the Kohl memoirs, in which monetary compensation of a million euros already awarded at first instance lapsed with the former chancellor’s death. Injunctive claims for the violation of personality rights are likewise strictly personal.
We are not insinuating anything. But one should know this case law to understand why news of a death may trigger more than sympathy on the defendants’ side. The statement was “in any case taken seriously”, they wrote in May. We have no doubt about that.
From LHR’s practice
Proceedings over videos and posts that expose people on social media are a regular part of our work, from a secretly recorded video on Instagram to a YouTube video with a private voice message (in German) and reputational damage through Instagram stories (in German). That the other side defends itself is its good right. That it occasionally gets creative in doing so is part of it too. A selection of our cases can be found under Our successes.
The pattern: a question that works like an allegation
Looking at the sequence as a whole, a pattern emerges that we encounter in other forms quite often. Instead of alleging something that would have to be proven, one asks a question, attaches a piece of circumstantial evidence and links a legal consequence to it while reserving the decision. In the proceedings the question works like an allegation, but it has none of the drawbacks of an allegation.
Then the burden is reversed. Because the question is now on the table, the other side is supposed to answer it, as quickly as possible, as reliably as possible and preferably at its own expense. Any delay that results is then held against it. And if the wind changes, the question was just a question.
What makes this particularly problematic is that such an approach has nothing to do with the actual dispute. Our case is about a video and whether recording and distributing it was unlawful. That question has barely been discussed for months.
What should claimants in personality rights cases take from this?
Above all, that questions from the other side are not orders. A claimant must present the case to the court fully and truthfully, but does not have to take on every piece of research the opponent would like done. Whoever wants to derive rights from a fact must put it forward themselves.
Why this principle of party presentation carries so much weight in German civil proceedings is described in more detail in our article on a decision of the Higher Regional Court of Stuttgart (Oberlandesgericht Stuttgart) (in German). A forwarded screenshot does little to change that; quite the opposite. What a screenshot can and cannot prove in civil proceedings is explained in our article on screenshots as evidence (in German).
Anyone involved in such proceedings should also be aware that the people around them are being read too. Status updates, profile pictures and posts by relatives end up in a court file surprisingly quickly, and usually without any of the context one would have given them oneself. That is no reason to withdraw from social media. It is, however, a reason to inform one’s own lawyer early if something happens privately that the other side might misunderstand.
Finally, it pays to keep the procedural instruments apart. Whoever offers a stay offers something that can be withdrawn at any time. Whoever applies for a suspension commits. That difference is usually a fairly reliable indicator of how seriously the other side takes its own hints.
Conclusion: whoever only asks cannot demand anything
Whether our client is alive is not the question for this article, and we will not answer it here. Whoever raises it in the proceedings must clarify it themselves, and with Section 246 ZPO had an instrument for doing so that went unused. Instead, the other side first wanted to commission the claimants with investigations, then investigated itself, and finally came to distrust its own news.
One may call that tactics. We see it more as a lesson in how long proceedings can revolve around a question that none of those involved has ever put in binding form.
Frequently asked questions on the death of a party in civil proceedings
What happens to German civil proceedings if the claimant dies?+
Does the opposing lawyer have to prove that their client is still alive?+
What is the difference between a stay and a suspension of proceedings?+
Does a claim for monetary compensation pass to the heirs?+
Is a social media screenshot sufficient proof of a death?+
A video or post about you is online, and the other side is playing for time?
Send us what is being spread about you and the status of your proceedings. We will tell you which claims you have, which of the other side’s questions you need to answer and which you do not, and how to steer the case back to the actual dispute. You will usually receive an initial assessment within 24 hours.
Further information
- Media law and personality rights
- Damages and compensation for violations of personality rights (in German)
- Negotiation strategy and litigation tactics (in German)
- Our fields of activity
- Our successes
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