Two Claims, One Tragedy
When someone dies because of another person’s negligence in Illinois, the family may have two separate legal claims. One is a wrongful death claim. The other is a survival action. They are related but distinct, and understanding the difference matters for getting full compensation.
Many families do not realize they can file both. Each claim covers different types of losses and benefits different people. Filing only one and missing the other can leave significant compensation on the table.
What Is a Wrongful Death Claim?
A wrongful death claim is brought on behalf of the surviving family members. It compensates them for what they lost when their loved one died. The claim is filed by the personal representative of the deceased person’s estate, but the damages go to the surviving spouse and next of kin.
The Illinois Wrongful Death Act (740 ILCS 180) governs these claims. It allows recovery for:
- Loss of society and companionship. The love, comfort, guidance, and support the deceased provided.
- Loss of consortium. For the surviving spouse, the loss of the marital relationship.
- Grief, sorrow, and mental suffering. The emotional toll on surviving family members.
- Lost income and financial support. The wages and benefits the deceased would have provided to the family.
- Loss of parental guidance. For minor children who lost a parent.
The focus of a wrongful death claim is on the survivors. It asks: what did the living family members lose because of this death?
Who Benefits from a Wrongful Death Claim?
The damages from a wrongful death claim go directly to the surviving spouse and next of kin. They do not pass through the estate. The court allocates the recovery among the beneficiaries based on their relationship with the deceased and their level of dependency.
For more on who qualifies, see our guide on who can file a wrongful death lawsuit in Illinois.
What Is a Survival Action?
A survival action is a separate claim that addresses what the deceased person experienced between the time of injury and the time of death. It is governed by the Illinois Survival Act (755 ILCS 5/27-6).
Think of it this way: if the deceased person had survived their injuries, they would have had a personal injury claim. The survival action preserves that claim and allows the estate to pursue it even though the person has died.
A survival action covers:
- Pain and suffering. The physical pain and emotional distress the deceased experienced before dying.
- Medical expenses. Hospital bills, surgeries, medications, and other treatment costs incurred between the injury and death.
- Lost wages. Income the deceased lost between the date of injury and the date of death.
- Property damage. Any damage to the deceased person’s property caused by the incident.
Who Benefits from a Survival Action?
Unlike a wrongful death claim, the damages from a survival action go to the deceased person’s estate. From there, they are distributed according to the person’s will or, if there is no will, according to Illinois intestacy laws.
This is a critical distinction. The beneficiaries of a survival action may not be the same people who benefit from a wrongful death claim. For example, if the deceased had a will that left everything to a sibling, the survival action damages would go to that sibling, while the wrongful death damages would go to the spouse and children.
Key Differences Between the Two Claims
Here is a clear breakdown of how wrongful death claims and survival actions differ:
Whose Losses Are Covered
A wrongful death claim compensates the surviving family for their losses. A survival action compensates the estate for the deceased person’s own losses before death.
Types of Damages
Wrongful death damages focus on future losses: lost future income, lost companionship, grief. Survival action damages focus on past losses: pain before death, medical bills, lost wages before death.
Where the Money Goes
Wrongful death damages go directly to the surviving spouse and next of kin. Survival action damages go to the estate and are distributed through probate.
Who Files the Claim
Both claims are filed by the personal representative of the estate. But they serve different beneficiaries and seek different types of compensation.
Why Filing Both Claims Matters
Many families only file a wrongful death claim and miss the survival action entirely. This is a mistake that can cost the family significant compensation.
Consider this example: A person is seriously injured in a car accident and spends three weeks in the hospital before dying. During those three weeks, they experience severe pain, undergo multiple surgeries, and accumulate $200,000 in medical bills. Without a survival action, those damages are not recovered.
Or consider a construction accident where a worker falls and suffers a traumatic brain injury. They survive for several months in a vegetative state before passing away. The pain, suffering, and medical costs during those months are only recoverable through a survival action.
The survival action can also be significant even when death occurs quickly. If the deceased experienced even a brief period of conscious pain and suffering before dying, that is compensable.
How the Two Claims Work Together
In practice, wrongful death claims and survival actions are usually filed together in a single lawsuit. The personal representative of the estate files both claims against the responsible party. They are listed as separate counts in the same complaint.
The jury (or judge in a bench trial) considers each claim separately and awards damages for each one. The total recovery is the combined amount from both claims.
This combined approach gives the family the most complete recovery. It addresses both what the deceased went through and what the family continues to face.
Statute of Limitations for Each Claim
Both claims have their own filing deadlines, and they are not always the same.
Wrongful Death Claim
The statute of limitations for a wrongful death claim in Illinois is two years from the date of death. This is a strict deadline with very limited exceptions.
Survival Action
The survival action has its own timeline. Generally, it must be filed within two years of the date of injury (not the date of death). However, if the person died before the personal injury statute of limitations expired, the survival action deadline may extend to allow the estate time to file.
The interaction between these deadlines can be complicated. It is important to consult with an attorney as soon as possible to ensure neither deadline is missed. For more information, see our guide on the Illinois wrongful death statute of limitations.
Practical Scenarios
Here are a few examples that show how these two claims apply in real situations:
Immediate Death
A pedestrian is struck and killed instantly by a negligent driver. The wrongful death claim covers the family’s losses: lost income, loss of companionship, grief. The survival action is limited because there was no period of conscious suffering. However, medical examiner evidence about the moments of impact may still support a brief pain and suffering claim.
Delayed Death After Injury
A patient undergoes surgery and suffers complications due to medical negligence. They spend six months in the hospital undergoing additional procedures before dying. The wrongful death claim covers the family’s future losses. The survival action covers the six months of pain, medical bills, and lost wages the patient experienced before death. The survival action will likely be substantial in this scenario.
Death After a Long Decline
A worker is exposed to toxic chemicals on a job site and develops a fatal illness over several years. The wrongful death claim covers the family’s losses after death. The survival action covers years of pain, suffering, medical treatment, and lost earnings during the illness. This type of case can involve very large survival action damages.
Tax Implications
There is a practical tax difference between the two claims. Wrongful death damages for personal losses like grief and loss of companionship are generally not taxable under federal law. Survival action damages for pain and suffering are also generally not taxable.
However, any portion of either award that represents lost wages or punitive damages may be subject to taxation. Families should consult a tax professional about the specific implications of their recovery.
Insurance Company Tactics
Insurance companies are well aware of the difference between these two claims. They may try to settle the wrongful death claim while ignoring the survival action, hoping the family does not know they have a second claim. They may also try to minimize survival action damages by arguing the deceased did not suffer or that medical bills were excessive.
An experienced wrongful death attorney will ensure both claims are pursued and that the insurance company does not take advantage of a grieving family.
Get Full Compensation for Your Family
If you have lost a loved one due to negligence in Illinois, you may be entitled to compensation through both a wrongful death claim and a survival action. Filing both claims ensures your family recovers the maximum amount available under the law.
Do not leave money on the table. Do not let the insurance company dictate what you recover.
Call Phillips Law Offices at (312) 346-4262 or contact us online at /contact/ for a free consultation.