Can You Defame a Dead Person? US Defamation Law After Death (2026)

Under the general common-law rule followed across the United States, you cannot defame a dead person, because defamation protects a living person's current reputation, and there is no living plaintiff to bring the claim once that person has died (Restatement (Second) of Torts §§ 560 to 562).

This article addresses the general common-law rule followed across US states on defaming a deceased person, plus the separate question of whether a defamation lawsuit that was already pending in court survives if the plaintiff dies before it concludes. It notes state variation using examples from California, Delaware, New York, Ohio, and Rhode Island rather than surveying all 50 states, and it distinguishes defamation from the separate right-of-publicity tort. It is general information, not legal advice for a specific state or case.

Can you defame a dead person?

No. Under the general common-law rule followed in nearly every US state, a deceased person cannot be defamed, and there is no cause of action for a false statement made about someone after they have died. Courts have generally held that defamation exists to protect a living person's current standing in the community, not the memory of someone who has already died, so once the person dies there is no living plaintiff who can suffer the reputational injury the tort is designed to remedy. This traces to the Restatement (Second) of Torts §§ 560 to 562, and the California Court of Appeal applied it directly in Flynn v. Higham, 149 Cal. App. 3d 677 (1983), rejecting a defamation claim brought by the children of actor Errol Flynn over a book that called their late father a Nazi spy. The rule applies the same way whether the false statement is written, spoken, or posted online, and however damaging it is.

This is sometimes summarized as "you cannot defame the dead," and the phrase is accurate as a description of the general rule, though as the rest of this article explains, it is not the whole picture once a lawsuit is already pending or a family member's own reputation is at stake.

Why doesn't defamation law protect the reputations of people who have died?

Defamation law protects reputation only while it can still be enjoyed by a living person, so the tort is best understood as a personal right that ends when the person dies rather than a right that transfers to an estate. Courts have reasoned that a person's standing in the community exists only as it operates during that person's lifetime, and once someone dies, they no longer participate in the ongoing social and professional life the tort is meant to protect. The Restatement (Second) of Torts frames this as a limit on who may sue, not a limit on what a defendant is permitted to say. In Flynn v. Higham, the California Court of Appeal explained that a person is "supposed to stand or fall upon his own merits," so a relative's own reputation is not legally damaged merely because a deceased family member's character was attacked in print.

Watch out: This is a majority common-law rule, not a constitutional requirement. A state legislature can create a narrow statutory exception, and Rhode Island has done exactly that for a limited category of statements, discussed below.

Does a defamation lawsuit survive if the plaintiff dies while the case is pending?

This is a different question from whether you can defame someone who is already dead. Here, a living plaintiff filed a defamation suit and then died before the case ended, and the issue is whether that pending claim can continue through the estate. The answer is not the same nationwide. At common law, personal torts such as defamation traditionally abated, meaning the case simply ended, on the death of either party, and a number of states still follow that rule by statute today. Other states apply a broader survival statute to some or all tort claims. Because survival-of-action statutes are creatures of state law, are worded differently state to state, and are generally read narrowly by courts, the outcome in any pending case depends on the specific statute in the state where the suit was filed and on when in the litigation the plaintiff died.

Three states illustrate the range. Ohio's survival statute expressly states that actions for libel and slander abate on the death of either party, meaning a pending defamation suit ends when the plaintiff or the defendant dies. Ohio Rev. Code § 2311.21. Delaware's survival statute similarly excepts defamation, along with malicious prosecution and actions on penal statutes, from the causes of action that pass to an estate. Del. Code Ann. tit. 10, § 3701. New York's survival statute preserves a cause of action "for injury to person or property" after death; because a defamation claim is understood as an injury to reputation rather than to person or property, it is generally treated as falling outside that statute and not surviving. N.Y. Est. Powers & Trusts Law § 11-3.2. These are illustrative examples rather than an exhaustive list, and the current survival statute and case law of the specific state involved should be checked directly.

Rhode Island's narrow exception: Rhode Island is the one state with a statute creating liability for a new defamatory statement about a person who has already died, not merely for continuing a suit the person filed before dying. Under R.I. Gen. Laws § 10-7.1-1, whoever would have been liable for slandering or libeling a person in an obituary, or a similar newspaper, radio, or television account, remains liable if the account is published within three months of that person's death. This is a narrow, statute-specific departure from the general rule described above and applies only in Rhode Island.

Can family members sue for defamation of a deceased relative?

Generally, no. Under ordinary defamation law, a surviving family member cannot sue over a false statement about a deceased relative, because the claim belongs to the person the statement was about, and that right does not pass to relatives when the person dies. Courts have generally held that a family member's own reputation is not legally damaged just because a dead relative was defamed. There is one important exception: if the statement is also "of and concerning" a living family member and defames that living person directly, for example by falsely implying the family member participated in the deceased relative's wrongdoing, the living family member can sue on their own behalf, based on their own reputational injury, using the ordinary elements described in our guide to the elements of defamation.

This is different from a separate, unrelated area of law called the right of publicity. A minority of states, including California, give a deceased person's estate a statutory right to control commercial use of that person's name, voice, signature, photograph, or likeness for a set number of years after death. California's version lasts 70 years and covers unauthorized use in advertising, merchandise, and certain digital replicas of a deceased public figure. Cal. Civ. Code § 3344.1. The right of publicity does not require a false statement and is not a form of defamation; it is closer to a property right against unauthorized commercial exploitation of a person's identity. A family member relying on a state's right-of-publicity statute is enforcing a different legal interest than a family member trying, unsuccessfully, to sue for defamation of a dead relative's reputation, and the two should not be confused.

Is defaming a dead person ever a crime?

Only in theory, and almost never in practice. Historically, English and early American common law treated maliciously "blackening the memory of the dead" as a criminal offense even though it gave no civil claim to relatives, on the theory that such statements were an affront to public morals rather than an injury to a private person. A handful of state criminal-libel statutes still carry that old language; Oklahoma's is described by legal historians as reflecting this antiquated "memory of the dead" concern, according to the First Amendment Encyclopedia's entry on criminal libel. Criminal defamation generally is now rare nationwide. Most states have repealed their criminal-libel statutes or seen them struck down as unconstitutional, and any surviving statute must satisfy the actual-malice standard the Supreme Court required for criminal defamation in Garrison v. Louisiana, 379 U.S. 64 (1964). No modern prosecution specifically for defaming a deceased person turned up in current research, and our guide to whether defamation is a crime covers the broader, still-rare category of criminal defamation charges involving living people.

Note: How a news outlet or platform handles a story about someone who has died is a matter of editorial practice, not law. The Society of Professional Journalists' Code of Ethics calls on journalists to "show compassion for those who may be affected adversely by news coverage" and to weigh the public's need for information against the harm coverage can cause grieving families. Those are professional guidelines, not legal rules, and following or ignoring them does not, by itself, create or defeat any legal claim.

This article provides general information about US defamation law as of July 2026. It addresses the common-law rule followed in most states, along with statutory examples from California, Delaware, New York, Ohio, and Rhode Island; it does not describe the law of every state, and survival-of-action and right-of-publicity statutes change over time. It is not legal advice for any specific situation. Anyone considering a claim, including whether a pending lawsuit should continue after a plaintiff's death, should consult a lawyer licensed in the relevant state.

Related articles

• Defamation Laws by State: Libel and Slander
• Elements of Defamation: What You Must Prove
• Can You Go to Jail for Defamation? Is It a Crime?
• Can a Public Figure Sue for Defamation? (Actual Malice)