Rule 25 Substitution After Death Requires an Estate-Based “Proper Party”; “Distributee” Is Not an Open-Ended Category

1. Introduction

In Human Rights Commission v. Homer Durkee (2026 VT 27), the Vermont Supreme Court addressed what happens to an enforcement action under the Vermont Fair Housing and Public Accommodations Act (VFHPAA) when the alleged wrongdoer dies and no estate is shown to exist.

The Vermont Human Rights Commission (HRC) sued landlord Homer Durkee for alleged discriminatory housing practices connected to a 2021 tenancy. Durkee died in August 2023. HRC then moved under Vermont Rule of Civil Procedure 25 to substitute Durkee’s four adult children (who ultimately came to own the rental property) and the estate of Durkee’s wife. The trial court denied substitution and later dismissed the case without prejudice when HRC did not file additional pleadings to proceed against a proper defendant.

The key issue on appeal was procedural but outcome-determinative: whether the proposed substitutes were “proper parties” under V.R.C.P. 25(a) (and, as argued, 25(c)), given the asserted facts that (i) Durkee held the relevant property jointly with his wife as marital property, (ii) the property passed to his wife by operation of law, and (iii) no estate had been opened for Durkee.

2. Summary of the Opinion

The Supreme Court affirmed. It held that even though the VFHPAA claim survived Durkee’s death (because the VFHPAA is remedial legislation under the reasoning of State v. Therrien), HRC failed to show that the children or the wife’s estate were “proper parties” for substitution under V.R.C.P. 25(a). The Court rejected HRC’s attempt to treat “distributee” as a broad, free-standing category encompassing anyone who received property that once belonged to the decedent. It also held V.R.C.P. 25(c) was inapplicable because there was no shown “transfer of interest” by Durkee during the pendency of the action.

Because substitution failed, the Court did not reach HRC’s argument that it could impose personal liability on the proposed substitutes after substitution.

3. Analysis

A. Precedents Cited

  • State v. MacFarland and State v. Villar: The Court used these cases to frame interpretation of procedural rules as a question of law reviewed de novo and guided first by plain language. This supported a text-first approach to Rule 25’s requirements: survival plus “proper parties.”
  • State v. Therrien: This was the central precedent for two propositions:
    1. Survival: claims under “remedial” protective legislation presumptively survive the wrongdoer’s death unless the Legislature says otherwise.
    2. Who may be substituted: substitution must be tied to the estate; the substituted person is a stand-in for the decedent’s estate and liability is limited to estate assets, not personal fault or personal exposure beyond the estate.
    The majority applied Therrien to conclude the VFHPAA claim survives, but it declined to extend Therrien to allow substitution without proof that the proposed parties fit within the estate-based categories recognized by Vermont survival statutes.
  • Maple Run Unified Sch. Dist. v. Vt. Hum. Rts. Comm'n and State v. Eaton: These cases supported the majority’s reliance on the VFHPAA’s expressly remedial construction directive (9 V.S.A. § 4500(c) as amended) and on statutory-interpretation principles (including the significance of legislative action/inaction) to reinforce, rather than retreat from, Therrien’s survival presumption for remedial statutes.
  • Fletcher v. Ferry: Used to explain that an heir’s rights derive from the decedent under intestacy statutes, reinforcing that “heir” status depends on intestate succession and on the existence of property passing that way.
  • Kennedy v. Rutter: Supported the key property-law premise: tenancy by the entirety means the surviving spouse automatically takes the whole property by operation of law, cutting against any claim that the children received that property from Durkee via intestacy.
  • Federal Rule 25 authorities—McSurely v. McClellan, Graham v. Henderson, In re Baycol Prods. Litig., and Sinito v. U.S. Dep't of Just.: The Court acknowledged these cases only to reject HRC’s reliance on them. It emphasized that these “distributee” cases involved distributed estates and that state law governs who is a proper substitute. The majority used them to narrow, not expand, the meaning of “distributee” in this context.
  • Ditech Fin. LLC v. Brisson: Cited to illustrate what qualifies as a “transfer of interest” during litigation under Rule 25(c) (e.g., assignments of a mortgage) and to contrast that with the absence of any showing that Durkee transferred an interest while the case was pending.
  • State v. Ludlow Supermarkets, Inc.: Used to underscore judicial restraint: courts do not replace legislative judgments about who may be sued as stand-ins for a decedent’s estate.
  • Concurrence authorities—Reynolds v. State and Adm'r of Whitcomb v. Cook: Justice Nolan invoked these cases to argue that survival should be grounded strictly in Vermont’s survival statutes and their historically text-based interpretation, and he urged overruling State v. Therrien. The majority distinguished Reynolds as context-specific and not foreclosing alternative survivorship grounds (including “actions that survive by common law”).

B. Legal Reasoning

1. Rule 25(a) has two independent gatekeeping requirements

The Court read V.R.C.P. 25(a) according to its plain language: substitution is permitted only if (i) the claim is “not thereby extinguished” by death and (ii) the substitutes are “proper parties.” This structure mattered because the Court accepted survival but still rejected substitution.

2. Survival was straightforward under the majority’s framework

The VFHPAA includes a legislative directive that it “shall be construed liberally to accomplish its remedial purposes.” Using State v. Therrien’s presumption, and reinforced by Maple Run Unified Sch. Dist. v. Vt. Hum. Rts. Comm'n, the Court concluded the VFHPAA claim survived Durkee’s death.

3. “Proper parties” must fit estate-linked categories recognized by Vermont law

The decisive holding is that HRC did not establish that the children (or the wife’s estate) were “proper parties.” The Court treated 14 V.S.A. § 1401 and § 1417 as defining the pool of potential substitutes: executor, administrator, heirs, devisees, or legatees.

HRC’s proof failed on multiple levels:

  • No evidence of a will (so the children could not be shown to be executors, devisees, or legatees).
  • No showing of an opened estate or an administrator.
  • No showing that the children were “heirs” in the intestacy sense as to any Durkee-owned assets that passed from him by intestate succession.

4. Tenancy by the entirety defeated the claimed inheritance pathway for the key asset

The only identified asset was the rental property. The Court accepted the unrefuted representation that it was jointly owned by Durkee and his wife as tenants by the entirety. Under Kennedy v. Rutter, that meant the property passed to the surviving spouse automatically, not through intestacy from Durkee to the children. Thus, even if the children later owned the property, HRC did not show they received it from Durkee’s estate or via intestate succession.

5. “Distributee” was confined to estate distribution, not broadened to any recipient of decedent-related property

HRC attempted to characterize the children as “distributees” simply because they ultimately received the property. The Court rejected that move. It read State v. Therrien’s “devisee (distributee)” language as referring narrowly to someone who receives property from a decedent’s estate (typically through will-based distribution). It also read the federal cases as using “distributee” in that same estate-distribution context. The Court refused to create a new, broader substitution category.

6. Rule 25(c) did not apply

Rule 25(c) concerns “transfer of interest” during the pendency of an action. The Court found no evidence that Durkee himself transferred any interest while the case was pending. Although Durkee’s wife later executed an enhanced life-estate deed, she was not a defendant and her transfer was not a basis to substitute parties for Durkee.

C. Impact

  • Procedural discipline in post-death civil enforcement cases: Even where a claim survives (especially under remedial statutes), the plaintiff must establish—factually and legally—that the proposed substitute is within the estate-linked categories of “proper parties.” Substitution will not be used to keep a case alive against convenient new targets.
  • Practical consequence for claimants and agencies: Plaintiffs may need to initiate or prompt estate administration (or otherwise develop a record about will/intestacy and assets) to identify a proper substitute. Absent an estate, substitution may fail even though the underlying cause of action is not extinguished in theory.
  • Clarification of “distributee” in Vermont substitution practice: The decision narrows arguments that attempt to equate “distributee” with any later recipient of property formerly connected to the decedent. Estate distribution—not mere downstream ownership—is the touchstone.
  • Doctrinal tension preserved, not resolved: The concurrence (joined by Justice Eaton) directly questioned State v. Therrien and urged a return to a survival analysis anchored in 14 V.S.A. §§ 1451-1453, as in Reynolds v. State and Adm'r of Whitcomb v. Cook. The majority declined to revisit Therrien, meaning future cases may squarely present whether Vermont should continue to presume survival for remedial statutory claims beyond the survival statutes’ enumerations.

4. Complex Concepts Simplified

  • “Survival” vs. “substitution”: Survival asks whether the legal claim still exists after a party dies. Substitution asks who, if anyone, can step into the deceased party’s place so the case can proceed.
  • “Proper party” under Rule 25(a): A person legally recognized as able to represent (or stand in for) the deceased party—typically an executor/administrator or an estate-linked recipient identified by statute (heir/devisee/legatee), depending on the circumstances.
  • Tenancy by the entirety: A form of marital ownership where each spouse is treated as owning the whole; when one spouse dies, the survivor owns the entire property automatically—without probate distribution from the deceased spouse.
  • Heir / devisee / legatee / administrator: An heir receives property under intestacy statutes (no will). A devisee (real property) or legatee (personal property) receives property under a will. An administrator is a court-appointed manager of an intestate estate.
  • Rule 25(c) “transfer of interest”: A procedural tool for when a party transfers the interest at issue during the lawsuit (e.g., assignment). It is not a general substitute for death-based substitution under Rule 25(a).

5. Conclusion

Human Rights Commission v. Homer Durkee establishes a clear procedural constraint: even when a VFHPAA claim survives a defendant’s death, substitution under V.R.C.P. 25(a) requires proof that the proposed substitute is an estate-linked “proper party” within the categories recognized by Vermont law. “Distributee” does not mean any later recipient of property once connected to the decedent, and Rule 25(c) does not apply absent a transfer by the litigating party during the case.

The decision will likely shape how plaintiffs—especially public agencies pursuing remedial enforcement—investigate estates, ownership forms, and succession pathways immediately after a defendant’s death. It also foregrounds an unresolved doctrinal debate (highlighted by the concurrence) about the breadth of State v. Therrien’s survivorship rule—an issue that may return in a future case presenting survivorship more directly.