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

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.

Contact John J. Malm & Associates for Compassionate Legal Support

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.