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Illinois Wrongful Death Law

The Illinois Wrongful Death Act defines a wrongful death as one caused by an act that would have allowed the decedent to file a personal injury claim. In Illinois, the decedent’s family members can’t file a wrongful death claim themselves. The executor of the decedent’s estate must file the claim, and they have a short time to do so.

The Illinois Survival Act lets the estate recover damages on behalf of the decedent. Wrongful death claims in Illinois are complicated, and surviving family members need a good wrongful death attorney and an understanding of Illinois law.

Illinois Wrongful Death Law

The Illinois Wrongful Death Act creates a cause of action for family members following the death of a loved one due to another person’s negligence or failure to act. A wrongful death may also be due to violent intentional conduct, such as homicide. The primary rule is that the decedent would have had their own cause of action but for their death.

A wrongful death case arises from many causes, including:

  • Medical malpractice
  • Car accidents
  • Nursing home neglect
  • Homicide and other violent crimes

Any recovery from a wrongful death lawsuit goes to the surviving spouse and next of kin.

Filing a Wrongful Death Lawsuit

In Illinois, family members may file wrongful death claims, but the claim gets filed in the name of the personal representative of the decedent’s estate. The surviving spouse and other beneficiaries get damages.

To avoid confusion, contacting a wrongful death attorney when filing a legal action is best.

A survival action gets filed by the personal representative on behalf of the decedent. The Survival Act protects the decedent’s legal right to recover for harm done to the dead person before their death.

A wrongful death suit compensates the family, but a survival lawsuit compensates the deceased person.

Damages Available

Claimants may recover economic and non-economic damages in a wrongful death lawsuit. Economic damages are sometimes called “pecuniary injuries” and refer to the financial compensation the beneficiaries would have gotten from the decedent.

Available damages include:

  • Funeral expenses
  • Loss of financial support
  • Pain and suffering
  • Emotional distress
  • Loss of consortium/loss of education

A survival action seeks compensation on behalf of the decedent, so damages include injuries suffered by the person before death, such as:

  • Medical expenses
  • Lost wages
  • Pain and suffering before death

For example, if a person died due to nursing home neglect, the surviving family members could sue for their own pain and suffering of the knowledge of their loved one’s death. The estate could sue for the decedent’s personal pain and suffering before death while in the home.

Statute of Limitations

Wrongful death statutes have differing time limits for filing legal actions. The cause of death and the party bringing the case determines the time limit.

  • For intentional acts (criminal acts), the statute is five years after the date of death or one year after the final adjudication if the charge is murder or manslaughter (740 ILCS 180/2(e)).
  • For wrongful death or survival actions, the statute of limitations is two years from the date of death.
  • Medical malpractice claims have a two-year statute of limitations. The statute can sometimes get extended. Contact an attorney for medical malpractice claims.

Note: State laws are subject to change through the passage of new legislation, court rulings (including federal decisions), ballot initiatives, and other means. FindLaw strives to provide the most current information available. You should consult an attorney or conduct your own legal research to verify the state laws before making any legal decisions.

Research the Law

  • Illinois Law — Information about Illinois statutes, including those about criminal, family, employment, and injury law.
  • Official State Codes — Links to online statutes in all 50 states and D.C.

Get Legal Advice from an Illinois Wrongful Death Lawyer

Understanding Illinois wrongful death laws is difficult when you’re mourning a loved one. Get legal advice from an experienced Illinois personal injury attorney for help with your wrongful death action.

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