When someone dies because of another person’s negligence in Illinois, the law allows surviving family members to seek compensation through a wrongful death lawsuit. But not everyone can file this type of claim. Illinois has specific rules about who can bring a wrongful death action and who benefits from any recovery.
Understanding these rules is important because filing incorrectly or missing a deadline can cost the family their right to compensation.
Who Files the Lawsuit
Under the Illinois Wrongful Death Act (740 ILCS 180), a wrongful death lawsuit must be filed by the personal representative of the deceased person’s estate. This is not a family member filing in their own name. It is a designated representative filing on behalf of all eligible surviving family members.
The personal representative is typically:
- The executor named in the deceased person’s will
- An administrator appointed by the probate court if there is no will
If no estate has been opened and no personal representative exists, the court can appoint one specifically for the purpose of filing the wrongful death lawsuit. A family member or their attorney can petition the court for this appointment.
The personal representative does not keep the recovery. They file the lawsuit and distribute any settlement or verdict to the eligible surviving family members according to Illinois law.
Who Benefits from the Lawsuit
The personal representative files on behalf of the surviving next of kin. Illinois law defines next of kin in a specific order of priority:
Spouse
The surviving spouse is always a beneficiary of a wrongful death claim. This includes legally married spouses. Illinois does not recognize common-law marriage, so unmarried partners generally do not qualify as next of kin for wrongful death purposes.
Children
The deceased’s children are beneficiaries. This includes:
- Biological children
- Legally adopted children
- Children born after the parent’s death (if conceived before death)
Stepchildren may qualify in some circumstances, particularly if the deceased stood in loco parentis (acted as a parent) to them.
Parents
If the deceased had no surviving spouse or children, the parents are the next in line as beneficiaries.
Siblings
If there is no surviving spouse, children, or parents, siblings can be beneficiaries of the wrongful death claim.
Other Dependents
Illinois law also allows other individuals who were financially dependent on the deceased to be considered as beneficiaries, even if they are not traditional next of kin. This can include domestic partners, grandchildren who the deceased was raising, or other relatives who depended on the deceased for financial support.
What If There Are Multiple Beneficiaries?
When there are multiple surviving family members, the wrongful death recovery is divided among them. Illinois law does not prescribe an exact formula for how the recovery is split. If the beneficiaries cannot agree on a division, the court decides based on each person’s relationship to the deceased and the losses they suffered.
Common scenarios:
- Surviving spouse and children: The recovery is typically divided between them based on their respective losses
- Surviving spouse only: The spouse receives the entire recovery
- Children only (no surviving spouse): The recovery is divided among the children
- Parents only: Both parents share the recovery
Wrongful Death vs. Survival Action
Illinois allows two separate claims when someone dies from negligence:
Wrongful death claim: Compensates the surviving family members for their losses. This includes lost financial support, loss of companionship, loss of parental guidance, and grief.
Survival action: Compensates the deceased person’s estate for damages the deceased experienced between the injury and death. This includes pain and suffering before death, medical expenses, and lost wages from the date of injury to death.
Both claims are filed by the personal representative. The survival action recovery goes to the estate and is distributed according to the will or intestacy laws. The wrongful death recovery goes directly to the next of kin.
Filing both claims maximizes the total recovery for the family. Read more about survival actions vs. wrongful death claims.
Statute of Limitations
The statute of limitations for wrongful death in Illinois is two years from the date of death. This is not two years from the date of the accident. If the deceased survived for six months after the accident before dying from their injuries, the two-year clock starts from the date of death.
For the survival action, the deadline is also two years from the date of death.
Missing the statute of limitations permanently bars the claim. The court will dismiss the case regardless of how strong the evidence is. Given the time needed to investigate a wrongful death claim, appoint a personal representative, and build the case, families should contact an attorney as soon as possible.
Special Situations
Death of a Child
When a child dies due to negligence, the parents file as the next of kin. Damages include loss of companionship, grief, and the expected future financial contributions the child would have made to the family. Read about wrongful death of a child claims.
Death of an Elderly Parent
Adult children can be beneficiaries when an elderly parent dies from negligence, such as in a car accident or nursing home neglect. Damages include loss of companionship, guidance, and any financial support the parent was providing.
Unmarried Partners
Illinois does not recognize common-law marriage. An unmarried partner generally cannot be a wrongful death beneficiary unless they can demonstrate financial dependency on the deceased. This is a significant gap in the law that affects many families.
Unborn Children
Illinois allows wrongful death claims for the death of a viable unborn child (generally after 24 weeks of pregnancy). The parents are the beneficiaries.
How to Get Started
If you lost a family member due to someone else’s negligence in Chicago, the steps to file a wrongful death claim are:
- Contact a wrongful death attorney. An experienced lawyer can evaluate your case, identify all liable parties, and guide you through the legal process.
- Appoint a personal representative. Your attorney can help petition the court to open an estate and appoint a representative if one does not already exist.
- Investigate the death. Gather medical records, accident reports, witness statements, and other evidence establishing negligence.
- File the lawsuit within two years of the date of death. Do not wait until the deadline approaches.
Talk to a Chicago Wrongful Death Lawyer
Losing a family member is devastating. The legal process can feel overwhelming on top of your grief. The attorneys at Phillips Law Offices handle every aspect of wrongful death claims so families can focus on healing while we fight for the compensation they deserve.
Call (312) 346-4262 or contact us online for a free consultation.