Page - WRONGFUL DEATH & SURVIVAL
Illinois has specific state laws that govern wrongful death claims.
Defining Wrongful Death in Illinois
740 Illinois Compiled Statutes 180 says, “Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages,” the person or entity that caused the death can be held liable in a wrongful death lawsuit.
So, in certain ways an Illinois wrongful death lawsuit is a claim that is brought on behalf of the deceased person. But this kind of lawsuit also allows a deceased person’s family members to recover compensation for their own losses stemming from the death and its impact on them.
Who May File a Wrongful Death Claim in Illinois?
In Illinois, a wrongful death claim must be filed by the personal representative of the deceased person’s estate. The personal representative may be a close relative of the deceased person, such as:
a spouse of the deceased
a parent of a minor child who is deceased, or
an adult child of the deceased
If the deceased person died without appointing a personal representative in his or her estate plan, the court may appoint a personal representative.
The personal representative is responsible for pursuing the wrongful death claim as well as carrying out other key tasks related to the estate.
There are two key differences between a wrongful death claim and a criminal case, even when both cases are based on the events surrounding the same death. A wrongful death claim is a civil lawsuit. It is brought to court by the personal representative of the deceased person’s estate directly, and any liability is expressed solely in terms of money damages. By contrast, a criminal case is brought by the state or federal government, and the liable person’s guilt is punished by jail or prison time, probation, or other penalties. A wrongful death case may be brought to court even if the government is also pursuing a criminal case.
Time Limits for Filing a Wrongful Death Claim in Illinois
In Illinois, a wrongful death lawsuit must be filed within the time limit set by the “statute of limitations” for the underlying type of case, or within one year of the date of the deceased person’s death, “whichever date is the later,” according to 735 ILCS 5/13-209. So, for personal injury cases — which must be filed within two years of the date of the accident — that means the representatives have at least one year, and as much as two years, to get the initial lawsuit filed in the Illinois court system. If the case is not filed within the applicable time limit, the court may refuse to hear it at all.
If you’ve got questions about how the Illinois filing deadline applies to your specific wrongful death case, it may be time speak to an experienced attorney.
Damages in an Illinois Wrongful Death Case
Damages in an Illinois wrongful death case are paid “for the exclusive benefit of the surviving spouse and next of kin of [the] deceased person.”
740 ILCS 180/2 says that the jury may award whatever damages are deemed to be fair and just compensation with respect to the losses resulting from the death, “including damages for grief, sorrow, and mental suffering, to the surviving spouse and next of kin of such deceased person.”
Damages are distributed by the court to the surviving spouse and/or next of kin, according to their level of dependency on the deceased person, as determined by the court’s assessment of the circumstances.
Certain damages are payable only to certain parties in an Illinois wrongful death case. For instance, funeral and burial expenses are typically paid to the estate directly, since these are costs imposed on the estate. Damages for the loss of care or companionship, however, typically belong to family members such as the deceased person’s spouse or children.