Written by Short answer: In Illinois, when someone dies because of another party’s negligence, two separate legal claims usually exist. A wrongful death claim under 740 ILCS 180/ compensates the surviving spouse, children, and next of kin for their loss. A survival action under 755 ILCS 5/27-6 compensates the decedent’s estate for damages the decedent suffered between the time of injury and the time of death (pain, lost wages, medical bills). Both claims are typically filed together by the estate representative. Each has a two-year statute of limitations.
In my experience handling Illinois fatal-injury cases, families often think the wrongful death claim is the entire case. It is usually only half. The survival action recovers the decedent’s own damages – pain and suffering between injury and death, medical bills, lost wages, and other harm the decedent personally experienced. On cases where death is not instantaneous, the survival action can be larger than the wrongful death claim itself.
Wrongful Death vs Survival: Side-by-Side
| Element | Wrongful Death (740 ILCS 180/) | Survival Action (755 ILCS 5/27-6) |
|---|---|---|
| Who recovers | Surviving spouse, children, next of kin | The decedent’s estate |
| What is compensated | Survivors’ grief, loss of companionship, financial dependency, lost services | Decedent’s pain and suffering, lost wages, medical bills before death |
| Who files | Estate’s personal representative (executor or administrator) | Estate’s personal representative |
| Statute of limitations | 2 years from date of death | 2 years from date of injury (decedent’s clock) |
| Distribution of recovery | Through Probate Court order under the Wrongful Death Act | Through the estate to creditors and beneficiaries |
| Available damages | Pecuniary loss, grief, loss of consortium and companionship | Compensatory damages the decedent could have recovered if alive |
The Wrongful Death Claim – What the Survivors Get
The Wrongful Death Act compensates the surviving family members for their loss. Damages include:
- Loss of financial support the decedent would have provided
- Loss of services the decedent provided (childcare, household labor, family management)
- Loss of companionship, consortium, and society
- Grief, sorrow, and mental anguish (added to the statute by amendment in 2007)
- Funeral and burial expenses
The Wrongful Death Act specifies who counts as a “next of kin” entitled to recover. The hierarchy is roughly: surviving spouse and children first; then parents and siblings; then more remote relatives. The Probate Court ultimately orders the distribution of the recovery among eligible survivors after the case settles or a judgment is entered.
The Survival Action – What the Decedent’s Estate Gets
The Survival Act preserves the decedent’s own claims that existed before death. The estate steps into the decedent’s shoes and recovers:
- Conscious pain and suffering experienced between injury and death (often the largest component)
- Medical expenses incurred before death
- Lost wages during the period between injury and death
- Property damage to the decedent’s possessions
- Pre-death disability and loss of normal life
If death is instantaneous (a fatal head injury at the moment of impact), the survival action may be small or nominal because there is little or no period of conscious suffering. If death follows hours, days, or months of conscious suffering (a fatal burn case, a sepsis case after a botched surgery, a hospitalized crash victim), the survival recovery can dwarf the wrongful death claim itself.
How Recovery Is Distributed
This is where families are often surprised. Wrongful death and survival recoveries are distributed through the Probate Court system, not directly to the family member who filed the case.
- Wrongful death recovery is distributed under the Wrongful Death Act based on the degree of dependency. A surviving spouse who depended on the decedent’s income typically receives a larger share than an adult independent child. The court determines this after evidence on the dependency relationships.
- Survival action recovery goes to the estate, which uses it to pay creditors first (medical bills, funeral expenses, hospital liens) and then distributes the remainder under the will or, if no will, the intestacy statute.
In practice, settlements often resolve both claims with a single number, then the Probate Court approves the allocation. Counsel for the estate works with the family to structure the allocation in the way that maximizes the family’s net recovery and minimizes tax and lien exposure.
Who Can File and When
Only the estate’s personal representative (also called executor or administrator) can file wrongful death and survival actions in Illinois. If no probate estate has been opened, one must be opened in Probate Court before the lawsuit can proceed. Some Illinois counties require letters of office before a complaint can be filed; others permit filing followed by appointment.
The two-year statute of limitations is firm:
- Wrongful death: 2 years from the date of death
- Survival action: 2 years from the original injury (the decedent’s own SOL continues to run)
If death follows the injury after a delay (a hospitalized crash victim who dies six months later), the survival action clock is running from the crash date, while the wrongful death clock starts at the death date. Get counsel involved as early as possible.
Frequently Asked Questions
My mother died in a Chicago car accident. Who can file the lawsuit?
The personal representative of her estate. If she had a will, the executor named there files. If not, the family can petition the Probate Court to appoint an administrator (often the surviving spouse or an adult child). The administrator then files the wrongful death and survival actions.
Do I have to open a probate estate?
Yes, to file these claims. The estate is the legal entity that holds the claims and receives the recovery. Smaller estates may qualify for simplified probate (small estate affidavit), but a wrongful death case typically requires full probate administration because the recovery is meaningful.
Is the wrongful death recovery taxable?
Generally no for the compensatory portion attributable to the survivors’ losses, which is most of the recovery. Punitive damages and any interest portions are taxable. Survival action recoveries that include compensation for pre-death medical bills and lost wages have nuanced tax treatment; coordinate with a CPA.
What if the decedent was partially at fault?
Illinois’s modified comparative fault rule applies. The wrongful death and survival recoveries are both reduced by the decedent’s percentage of fault. If the decedent was more than 50% at fault, neither claim recovers.
How long does a wrongful death case take?
Typically 18 months to 3 years from filing to resolution, similar to other personal injury cases. Cases involving multiple defendants, commercial vehicles, or governmental defendants can take longer. Settlements often come during or after discovery; trials are 1-3 weeks of trial time.
Authoritative Sources
- 740 ILCS 180/ – Illinois Wrongful Death Act
- 755 ILCS 5/27-6 – Illinois Survival Act
- 735 ILCS 5/13-202 – Two-year personal injury SOL
- Illinois Courts
