Who Is a Proper Party to Bring a Wrongful Death Claim in Illinois?

John J. Malm & Associates Personal Injury Lawyers

When a loved one dies due to another’s negligence, certain family members may pursue compensation through a wrongful death claim. However, the legal framework in Illinois outlines specific guidelines regarding who can file such a claim and how damages are distributed. At John J. Malm & Associates, with offices in Naperville and St. Charles, and guided by John Malm’s 30 years of experience, our Illinois wrongful death attorneys help families navigate the complexities of wrongful death claims to ensure they receive the compensation they deserve.

The Illinois Wrongful Death Act

The Illinois Wrongful Death Act (740 ILCS 180/1) governs wrongful death claims in the state. The Act allows a claim to be filed when a person’s death results from the wrongful act, neglect, or default of another party. The claim must be brought by the personal representative of the deceased’s estate, and any damages awarded are distributed among the deceased’s surviving next of kin, based on their dependency on the deceased. This compensation aims to address both economic losses (such as lost wages) and non-economic damages (such as grief and loss of companionship).

The Act requires that a wrongful death claim be filed within two years of the deceased’s death, per Illinois law.

Who Can File a Wrongful Death Claim in Illinois?

Under Illinois law, wrongful death claims must be filed by the personal representative of the deceased’s estate. This individual may be named in the deceased’s will, or, if no will exists, the court may appoint a representative. The personal representative is responsible for bringing the lawsuit on behalf of the deceased’s surviving family members, including:

Surviving Spouse

The surviving spouse of the deceased is often a primary party eligible to recover damages. Illinois law allows a spouse to seek compensation for:

  • Loss of Financial Support: This includes compensation for the deceased’s lost income and financial contributions to the household.
  • Loss of Companionship: Spouses may recover damages for the emotional loss of love, companionship, and consortium.

Surviving Children

Children of the deceased are also eligible to recover damages. They may seek compensation for:

  • Loss of Parental Guidance: This includes the emotional loss of a parent’s care and guidance.
  • Loss of Financial Support: Damages may be awarded for the financial contributions the deceased parent would have provided.

Surviving Parents

If the deceased has no spouse or children, the surviving parents may bring a wrongful death claim. Illinois law allows parents to recover for:

  • Loss of Companionship: Parents are entitled to damages for the emotional loss of their child’s love and support.
  • Grief and Sorrow: The law allows parents to seek compensation for the emotional suffering they experience due to the death of their child.

Extended Family Members and Wrongful Death Claims

Extended family members, such as siblings or grandparents, generally do not have the right to file a wrongful death claim unless they are appointed as the personal representative. Extended family members may be appointed by the court only if no next of kin is available to serve as the personal representative. However, merely serving as the personal representative does not entitle an individual to receive compensation. Instead, any damages awarded in a wrongful death claim are distributed to the next of kin based on their status as a dependent under the Illinois Wrongful Death Act (740 ILCS 180/2).

The Distinction Between Wrongful Death and Survival Actions

It’s important to distinguish between a wrongful death claim and a survival action. While a wrongful death claim is brought to compensate surviving family members for the loss of financial support, love, and companionship, a survival action addresses the pain and suffering the deceased experienced before death. Under Illinois law (755 ILCS 5/27-6), a survival action must be filed separately from a wrongful death claim and is pursued by the decedent’s estate to recover damages that the deceased could have pursued had they survived. These damages include medical expenses, lost wages, and the deceased’s personal pain and suffering before passing.

Any damages recovered in a survival action are distributed to the decedent’s probate estate, rather than directly to the family members. In contrast, damages in a wrongful death claim benefit the next of kin directly, based on their dependency on the deceased.

Distribution of Damages in Illinois Wrongful Death Claims

Once a wrongful death claim is successfully resolved, the damages are distributed among the next of kin, based on their relationship to the deceased and their dependency. Illinois law ensures that damages reflect the financial and emotional loss suffered by each family member.

Legal Guidance for Illinois Families in Wrongful Death Cases

At John J. Malm & Associates, with over 30 years of experience, we are committed to helping families in Naperville, St. Charles, and throughout Illinois seek justice after losing a loved one due to wrongful death. Our experienced team of Illinois personal injury lawyers ensures that the proper legal actions are pursued, and families receive the compensation they deserve for both wrongful death and survival claims.

“In a wrongful death case, the loss extends far beyond financial impact. It’s about seeking justice for the family and ensuring they receive compensation for both the emotional and financial void left behind. We work to provide families the support they need to begin healing.” — John J. Malm

Steps to Take After a Wrongful Death

If your family has experienced a wrongful death, consider taking the following steps:

  1. Consult with a Wrongful Death Attorney: Seek experienced legal advice to understand your rights.
  2. Gather Documentation: Collect important documents such as medical bills, financial records, and evidence related to the incident.
  3. File a Claim: Remember that wrongful death claims must be filed within two years of the death, per Illinois law.

At John J. Malm & Associates, we provide dedicated legal representation to families who have suffered the wrongful death of a loved one. With offices in Naperville and St. Charles, we are here to guide you through the legal process and ensure that your family receives the compensation and justice you deserve. Contact our dedicated Illinois wrongful death attorneys today for a free consultation.

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What is a wrongful death claim in Illinois?
A wrongful death claim is a legal action that can be brought when someone dies due to the negligence or intentional actions of another person or entity. In Illinois, the Wrongful Death Act (740 ILCS 180/) allows family members to pursue compensation for the emotional and financial losses they suffer as a result of their loved one’s death.
Who can file a wrongful death claim in Illinois?
Under Illinois law, only certain individuals are eligible to file a wrongful death claim. The claim must be filed by a special representative of the deceased person’s estate. The court appoints this representative, often the executor named in the deceased's will, or, if there is no will, a family member may be appointed by the court to act in this capacity. The Wrongful Death Act (740 ILCS 180/2) provides this special representative with the authority to investigate the circumstances of the death, file a lawsuit, and negotiate or settle claims on behalf of the deceased’s estate. Damages recovered from the wrongful death suit are distributed to the surviving spouse and next of kin, such as children or parents, based on the level of financial and emotional dependency each had on the deceased.
What types of damages can be recovered in a wrongful death claim?
A wrongful death lawsuit helps surviving family members recover several types of damages, including: medical bills, funeral expenses, compensation for emotional pain, suffering, loss of companionship, and loss of guidance.
How long do I have to file a wrongful death claim in Illinois?
In Illinois, the statute of limitations for filing a wrongful death lawsuit is generally two years from the date of the person’s death. However, there are some exceptions.
What types of accidents and injuries commonly result in wrongful death claims?
Several types of injuries often result in fatalities, leading to wrongful death claims in Illinois, including motor vehicle accidents, workplace injuries, medical malpractice, nursing home negligence, and defective products.
How do I prove liability in a wrongful death case?
To prove liability in a wrongful death case, you must demonstrate that the defendant’s negligence or intentional actions directly caused your loved one’s death.
Can I file a wrongful death claim if my loved one was partially at fault?
Yes, under Illinois’s modified comparative negligence rule (735 ILCS 5/2-1116), you may still recover damages even if your loved one was partially at fault for the accident, as long as they were less than 50% responsible.
What is the difference between a wrongful death claim and a survival action?
A wrongful death claim seeks compensation for the losses suffered by the surviving family members. This includes damages such as loss of financial support, companionship, and emotional suffering. A survival action (755 ILCS 5/27-6) is brought on behalf of the deceased’s estate for the damages the deceased could have claimed if they had survived. This includes compensation for pain and suffering the deceased endured before death, as well as medical expenses incurred prior to death. In Illinois, both a wrongful death claim and a survival action can be pursued simultaneously.
How is compensation distributed among surviving family members?
Under Illinois law, the damages recovered in a wrongful death claim are distributed to the surviving spouse and next of kin. The distribution is based on the level of financial and emotional dependency each family member had on the deceased.
Can a wrongful death claim be settled out of court?
Yes, many wrongful death claims are resolved through settlements without going to trial. Settling a claim can save time, emotional distress, and legal costs for the family. However, wrongful death cases are often complicated, involving complex legal and factual issues, such as proving negligence and calculating damages for future losses. It is crucial to have an experienced Illinois wrongful death attorney navigate these complexities and negotiate the settlement to ensure the family receives fair compensation.
How long does it take to resolve a wrongful death claim?
The timeline for resolving a wrongful death claim varies depending on the complexity of the case, whether liability is disputed, and whether the case is settled out of court or proceeds to trial. Many wrongful death claims can be resolved through settlement in several months, especially if the facts are straightforward and liability is clear. However, cases that require litigation will typically take much longer, often lasting a year or more. Litigation involves extensive legal procedures such as pre-trial motions, discovery, depositions, and potentially a trial, all of which can significantly extend the timeline.
What should I look for in a wrongful death attorney?
When selecting a wrongful death attorney, consider the attorney's experience, track record, and compassion.