When Someone Dies Because of Another Person’s Negligence
Losing a family member in an accident is devastating. When that death was caused by someone else’s negligence, Illinois law provides two separate legal actions for the family and the estate: the Wrongful Death Act and the Survival Act.
These two laws are often confused. They are filed together in most cases. But they serve different purposes, compensate different losses, and benefit different people. Understanding the distinction is critical to recovering the full compensation your family deserves.
The Illinois Wrongful Death Act: 740 ILCS 180
The Illinois Wrongful Death Act (740 ILCS 180/1 et seq.) allows the personal representative of the deceased person’s estate to file a lawsuit on behalf of the surviving family members. The claim compensates the living family for their losses caused by the death.
Who Can Recover Under the Wrongful Death Act?
The damages recovered under the Wrongful Death Act go to the surviving spouse and next of kin. The statute specifically names:
- Surviving spouse
- Children (including adopted children)
- Parents
- Siblings
- Other dependents who were financially dependent on the deceased
The personal representative (executor or administrator of the estate) files the lawsuit, but the recovery goes to the family members, not the estate.
What Damages Does the Wrongful Death Act Cover?
The Wrongful Death Act compensates the family for the losses they suffered because of the death. These include:
- Loss of financial support. The income and financial contributions the deceased would have provided to the family.
- Loss of companionship. The love, comfort, guidance, and society the family lost.
- Loss of parental guidance. For minor children who lost a parent, the guidance and nurturing they will miss.
- Grief and mental suffering. The emotional pain and anguish the surviving family members experience.
- Loss of services. Household services, childcare, home maintenance, and other practical contributions the deceased provided.
There is no cap on wrongful death damages in Illinois. The amount depends on the evidence presented about the deceased person’s life, earnings, relationships, and the family’s losses.
Statute of Limitations
The wrongful death claim must be filed within two years of the date of death (not the date of the injury that caused the death). This deadline is found in 740 ILCS 180/2.
If the death resulted from a violent crime, the statute of limitations may be extended to five years under certain circumstances (740 ILCS 180/2.1).
The Illinois Survival Act: 755 ILCS 5/27-6
The Survival Act (755 ILCS 5/27-6) is a completely separate claim. While the Wrongful Death Act compensates the living family, the Survival Act preserves the claims the deceased person would have had if they had survived.
What Does the Survival Act Cover?
The Survival Act allows the estate to recover damages that the deceased person experienced between the time of injury and the time of death. These include:
- Pain and suffering. The physical pain and emotional distress the deceased experienced from the moment of injury until death.
- Medical expenses. The cost of medical treatment the deceased received between the injury and death.
- Lost wages. Earnings the deceased lost between the injury and death.
- Property damage. Damage to the deceased’s property in the incident.
The critical point: Survival Act damages go to the estate, not directly to the family. The estate distributes the recovery according to the deceased’s will or, if there is no will, according to Illinois intestacy law.
Pain and Suffering Between Injury and Death
The Survival Act’s pain and suffering component is sometimes the most significant part of the claim. If the deceased person survived for hours, days, or weeks after the injury before dying, the pain and suffering damages can be substantial.
Even brief periods of conscious pain matter. If an accident victim was conscious for minutes after a crash and experienced severe pain and terror before dying, those minutes of suffering are compensable.
However, if death was instantaneous, there may be no Survival Act claim for pain and suffering because the deceased did not experience a period of conscious suffering.
Statute of Limitations
The Survival Act claim follows the statute of limitations that would have applied to the deceased’s claim. For most personal injury cases, that is two years from the date of injury.
Key Differences Between the Two Acts
Who Benefits
Wrongful Death Act: Surviving spouse and next of kin receive the recovery directly.
Survival Act: The estate receives the recovery, which is then distributed according to the will or intestacy law.
What Is Compensated
Wrongful Death Act: The family’s losses caused by the death (loss of support, companionship, grief).
Survival Act: The deceased’s own losses between injury and death (pain, suffering, medical bills, lost wages).
Time Period
Wrongful Death Act: Covers losses from the date of death into the future.
Survival Act: Covers losses from the date of injury to the date of death.
Who Files
Both claims are filed by the personal representative of the estate. But the Wrongful Death Act claim is filed on behalf of the family, while the Survival Act claim is filed on behalf of the estate.
Why Both Claims Matter
Filing both claims ensures the family recovers for the full scope of losses. Consider this example:
A person is hit by a negligent driver in a car accident. They are rushed to the hospital, undergo emergency surgery, spend three weeks in the ICU in severe pain, and then die from their injuries.
- Survival Act claim: Three weeks of excruciating pain and suffering, $250,000 in medical bills, and three weeks of lost wages. These damages go to the estate.
- Wrongful Death claim: The family loses the deceased’s future income (potentially millions over a lifetime), companionship, guidance for their children, and suffers profound grief. These damages go to the family.
Without both claims, the family leaves significant compensation on the table.
Who Can File a Wrongful Death Claim?
Only the personal representative of the estate can file. If the deceased had a will naming an executor, that person files. If there is no will, a family member must petition the probate court to be appointed administrator of the estate.
This means a probate estate must be opened. Even if the deceased had no significant assets, an estate must be established for the purpose of bringing the wrongful death and survival claims.
Family members cannot file wrongful death claims individually. The personal representative acts on behalf of all eligible beneficiaries.
Common Causes of Wrongful Death in Illinois
Wrongful death claims arise from any situation where negligence or intentional conduct causes death:
- Car accidents. Motor vehicle collisions are the leading cause of wrongful death claims in Illinois.
- Truck accidents. Commercial truck crashes often result in fatalities due to the size and weight of the vehicles.
- Motorcycle accidents. Motorcyclists are especially vulnerable and fatal motorcycle crashes are tragically common.
- Medical malpractice. Surgical errors, misdiagnosis, medication errors, and hospital negligence.
- Workplace accidents. Fatal falls, equipment failures, and industrial accidents.
- Premises liability. Fatal falls, drownings, electrocutions, and other hazardous property conditions.
- Defective products. Products that malfunction and cause fatal injuries.
Damages in Wrongful Death Cases Are Not Capped
Illinois does not cap wrongful death damages. The Illinois Supreme Court’s decision in Lebron v. Gottlieb Memorial Hospital (2010) struck down damage caps as unconstitutional. This applies to wrongful death cases as well as other personal injury claims.
Juries in Illinois wrongful death cases have returned verdicts ranging from hundreds of thousands to tens of millions of dollars, depending on the facts.
Comparative Fault in Wrongful Death Cases
The modified comparative fault rule applies to wrongful death and survival claims. If the deceased was 50% or more at fault for the accident, the claims are barred. If the deceased was less than 50% at fault, the recovery is reduced by the deceased’s fault percentage.
For example, if the deceased was 20% at fault in a fatal car accident and total damages are $2 million, the recovery is reduced by 20% to $1.6 million.
Defense attorneys will aggressively try to assign fault to the deceased person, knowing the deceased cannot testify. Strong evidence and thorough investigation are essential. See our page about shared fault in Illinois for more detail.
How Insurance Affects Wrongful Death Claims
Most wrongful death claims are resolved through the at-fault party’s insurance. The at-fault driver’s auto policy, a trucking company’s commercial policy, a hospital’s malpractice coverage, or a property owner’s liability insurance are common sources of compensation.
If the at-fault party’s insurance is insufficient to cover the full value of the claim, additional sources may be available: underinsured motorist coverage on the deceased’s own policy, umbrella policies, or claims against additional defendants.
Criminal Charges and Civil Claims
A wrongful death civil case is separate from any criminal prosecution. If the at-fault party is charged with vehicular homicide, DUI causing death, or another crime, the criminal case and the civil case proceed independently.
A criminal conviction can help the civil case by establishing that the defendant’s conduct was illegal. But a wrongful death claim does not require a criminal conviction. The burden of proof in civil court (preponderance of the evidence) is lower than in criminal court (beyond a reasonable doubt).
Even if the at-fault party is acquitted of criminal charges, the family can still win the wrongful death case.
The Importance of Acting Quickly
Time is critical in wrongful death cases for several reasons:
- Evidence preservation. Surveillance footage, vehicle black box data, and witness memories degrade over time.
- Statute of limitations. The two-year deadline is firm. Missing it destroys the claim.
- Estate administration. Opening a probate estate takes time, and the personal representative must be appointed before the lawsuit can be filed.
- Insurance company tactics. Insurers may try to settle quickly and cheaply before the family understands the full value of the claim.
Why You Need an Attorney for Wrongful Death Claims
Wrongful death cases are among the most complex personal injury claims. They require expertise in both probate law (to properly establish the estate) and tort law (to prove liability and damages). Choosing an experienced wrongful death attorney is essential to protecting the family’s rights and recovering full compensation.
Talk to Phillips Law Offices Today
If you lost a family member due to someone else’s negligence in Illinois, you deserve answers and accountability. Both the Wrongful Death Act and the Survival Act may provide compensation for your family’s losses.
Call Phillips Law Offices at (312) 346-4262 or contact us online for a free consultation.