Written by Short answer: In Illinois, only the personal representative of the deceased’s estate can file a wrongful death lawsuit under 740 ILCS 180/. The personal representative is either the executor named in the will or, if no will exists, an administrator appointed by the Probate Court (typically the surviving spouse, an adult child, or a parent). The recovery does not go to the personal representative individually; it is distributed by the Probate Court to the “next of kin” – spouse, children, parents, and siblings in that priority – based on each person’s degree of dependency on the deceased. The two-year statute of limitations runs from the date of death.
In my experience handling Illinois wrongful death cases, families often want to file directly under their own names. Illinois law does not permit this. The estate is the legal entity that owns the claim. Understanding who has standing, who recovers, and how the Probate Court distributes the recovery is foundational to handling these cases correctly.
Who Can Be Appointed as Personal Representative
| Scenario | Who is typically appointed |
|---|---|
| Deceased had a valid will naming an executor | The named executor (usually a surviving spouse or adult child) |
| Deceased died without a will, married | The surviving spouse |
| Deceased died without a will, single with adult children | An adult child (or co-administrators if siblings agree) |
| Deceased died without a will, single without children | A parent or sibling |
| Family cannot agree on representative | Probate Court appoints a neutral administrator |
| No qualified family member willing to serve | Public Administrator or court-appointed lawyer |
Opening the Probate Estate
Before a wrongful death lawsuit can proceed, the probate estate has to be opened. This is true even if the deceased had no other significant assets – the estate is the procedural vehicle for the lawsuit. Steps:
- File petition for letters of office in the Probate Division of the Circuit Court (Cook County, DuPage County, etc.)
- Provide death certificate and proof of relationship
- Submit the will if one exists; otherwise petition for intestate administration
- Court appoints the personal representative and issues letters of office
- Personal representative receives statutory authority to act on behalf of the estate
- Personal representative (through counsel) files the wrongful death and survival actions
The estate opening typically takes 4 to 12 weeks. Counsel often files the lawsuit immediately after letters are issued, especially when the two-year deadline is approaching.
The Next-of-Kin Hierarchy
The Illinois Wrongful Death Act defines “next of kin” entitled to share in the recovery. The hierarchy is:
- Surviving spouse and direct lineal descendants (children, grandchildren if the parent died before the deceased)
- If no spouse or descendants, then parents and siblings
- If none of the above, more remote relatives based on intestacy rules
Each eligible next of kin can claim their proportionate share of the recovery, based on the degree of their loss. A surviving spouse who was financially dependent on the deceased typically receives a larger share than an adult independent child. An estranged adult child who had no relationship with the deceased may receive nothing, depending on the evidence presented to the Probate Court.
What About Unmarried Partners?
Illinois recognizes spouses for wrongful death purposes, including legally married same-sex spouses. Unmarried partners (long-term cohabitants without marriage) are generally not “next of kin” under the Wrongful Death Act and have no direct claim. Their loss may be relevant to the children’s recovery if children are involved, but the partner themselves typically cannot share directly.
Civil unions registered under Illinois law before marriage equality are typically treated as marriages for these purposes. Common-law marriage was abolished in Illinois in 1905; couples claiming common-law marriage from another state need to establish the marriage under that state’s law.
The Survival Action Distinction
Separate from wrongful death is the survival action under 755 ILCS 5/27-6. The survival action compensates the deceased’s estate for what the deceased personally experienced before death (pain and suffering, medical bills, lost wages). The survival recovery goes to the estate and is distributed under the will or intestacy statute, not under the wrongful death distribution scheme.
Most wrongful death lawsuits include both claims. They are often resolved together with a single settlement number, then the Probate Court allocates between wrongful death (next of kin) and survival (estate) portions. The allocation matters because the distributions go to different people in different proportions.
Frequently Asked Questions
My mother died and I’m her only child. Do I need to open a probate estate to sue?
Yes. The estate is the legal entity that holds the wrongful death and survival claims. Even if you are the only person entitled to inherit, the procedural vehicle is the estate.
My father died and his second wife is the executor. Can I file my own lawsuit?
No. Only the personal representative can file. The executor (your stepmother) files the lawsuit on behalf of the estate, and the recovery is distributed by the Probate Court to all next of kin, including you.
What if the executor and the family disagree about whether to sue?
The executor has fiduciary duties to act in the estate’s best interest. If the executor refuses to pursue a meritorious wrongful death claim, the family can petition the Probate Court to remove the executor or to appoint a special administrator for the limited purpose of the lawsuit.
Can I be the personal representative if I’m not a U.S. citizen?
Generally yes, but Illinois has some procedural requirements for non-resident representatives. Counsel can advise on the specific rules. In practice, U.S.-resident family members are usually appointed.
How long do I have to open the estate and file?
Two years from the date of death for the wrongful death claim. The estate opening should happen well within the first 6 to 12 months to allow time for the lawsuit. Estate opening alone takes 4 to 12 weeks.
Authoritative Sources
- 740 ILCS 180/ – Illinois Wrongful Death Act
- 755 ILCS 5/27-6 – Illinois Survival Act
- 755 ILCS 5/ – Illinois Probate Act
- Illinois Courts
