The Illinois Wrongful Death Act & Survival Act Explained

A Guide to Wrongful Death Laws in the State of Illinois

The unexpected loss of a loved one is a tragedy.

The emotional pain, suffering, and grief can be difficult to bear – and if someone caused that person’s death – it can feel nearly impossible to move on.

While bereavement is rarely easy, there are laws in place to bring justice for family members and other representatives of Illinois wrongful death victims.

Whether you’re looking to take part in a wrongful death lawsuit, or you’re curious about your state’s wrongful death laws — it’s important that you have the correct information.

This article covers Illinois wrongful death laws, scenarios, survivor rights, legal processes, and other relevant information.

Read on to learn more.

What Is Considered Wrongful Death in Illinois?

In legal terms, “wrongful death” covers instances when someone’s negligence, carelessness, disregard, or misconduct leads to another person’s death.

These claims are common in cases such as fatal car accidents and medical malpractice lawsuits.

Illinois and other states established these laws so that victims’ personal representatives, often their close family members, could seek damages from the liable party to compensate for their own suffering.

Illinois Wrongful Death Act

The Illinois Wrongful Death Act (740 ILCS 180) is applied in cases where the death of a person is caused by another’s “wrongful act, neglect, or default.”

The act helps the victim’s family members recover financial compensation for the damages they incurred due to their loved one’s death such as lost income and emotional suffering.

There are a wide array of incidents that could fall under the Illinois wrongful death act.

Common cases include fatal:

• Auto accidents caused by distracted driving and impaired driving.
• Medical Malpractice such as anesthesia malpractice or bad drug prescriptions.
• Personal Injuries including workplace injury and premise liability.
• Criminal behavior such as assault, battery, and intentional torts.
• Deaths in nursing homes, daycares, and other care facilities.

The person, company, or corporation responsible for the death is then held liable for damages that the jury deems fair and just compensation.

The recovered amount is distributed by the court or circuit court to the victim’s spouse and next of kin.

In cases where the victim does not have close family, the wrongful death damages can be awarded to personal representatives, medical staff, or others who suffered financially due to the death.

Wrongful Death Act Statute of Limitations

The wrongful death law Illinois statute of limitations ­—the time limit after the incident in which victims’ representatives can file a complaint — is two years for most wrongful death cases.

This means that families of wrongful death victims need to file within two years of their loved one’s death, or within two years of discovering the cause of their loved ones death if they want a chance in court.

However, Sec. 2(e). of the act extends this to five years after the date of the death in cases involving violent intentional conduct.

History and Purpose of the Wrongful Death Act

The Illinois’ Wrongful Death Act (740 ILCS 180) has seen many updates since its 1853 inception.

Prior to the act’s addition to the Illinois constitution, state common law did not provide the opportunity for families of wrongful death victims to seek legal action.

The passing of the act granted family members the right of recovery for “pecuniary injuries” such as loss of society and loss of consortium.

The Illinois Supreme Court has made numerous Wrongful Death Act amendments to define and account for specificities such as appropriate compensation, benefactors, and other relevant case factors.

Illinois Survival Act

The Illinois Survival Act (755 ILCS 5/27-6) is also applied in cases where a person’s negligent or wrongful action’s lead to another’s death.

The Survival Act gives the victim’s family members the ability to file claims and recover financial compensation on behalf of the defendant through the establishment of an estate.

This preserves the deceased person’s legal right to pursue legal action beyond his or her death.

The Survival Act covers any damages the victim could have claimed had he or she survived.

This includes lost earnings, medical expenses, damages to personal property, and other losses from the incident.

This can help surviving family members cover costs of the victim’s final medical expenses and other incident-related expenses, as well as provide financial support that the family may have lost as a result of their loved one’s death.

Survival Act Statute of Limitations

The statute of limitations for the Illinois Survival Act, like the Wrongful Death Act, is generally two years.

However, the statute of limitations for wrongful death claims is two years from the time of death while the statute of limitations for survival claims is two years from the time of the incident.

In cases where a victim’s death is not immediate, this can cause confusion.

This time window is extended to five years for cases involving murder, manslaughter, and other violent intentional conduct claims.

History and Purpose of the Illinois Survival Act

The Illinois Survival Act was written into the state constitution in 1873.

Prior to its passing, family members of wrongful death victims were able to make claims for their own damages, but not for the victims.

This essentially meant that claims could only be made for actions the occurred after the death.

The Survival Act was passed so that the victim’s family could seek compensation for damages and costs accrued before the victim’s death.

Survival Act Vs Wrongful Death Act

The Wrongful Death Act and Survival Act are used to help family members of wrongful death victims.

Families can utilize the two acts simultaneously to earn compensation for their losses.

While both acts are similar, they carry distinct differences that are important to distinguish.

The biggest distinction between the two acts is in whose damages are being claimed.

With the Wrongful Death Act, family members of the victim can seek out damages for losses they personally incurred due to the death.

Survival Act claims are for the victim’s damages which the family recovers through the victim’s estate.

Wrongful Death Claim vs Wrongful Death Lawsuit

The terms “claim” and “lawsuit” are often used interchangeably.

While both are part of the civil lawsuit process, claims and lawsuits are different actions with different outcomes.

Depending on the severity of the case, some wrongful death cases can be settled without needing to file a lawsuit.

In some wrongful death situations, the victim’s family will file a claim against the at-fault party’s insurance provider.

If both parties agree to the terms of the claim, the two parties settle out of court and work out a payment plan to compensate for the family’s suffering.

If the family and the insurance provider are unable to come to an agreement, or if the wrongful death incident is not covered by the defendant’s insurance provider or the defendant does not have insurance, then the family must take legal action.

The family will have to file a claim in the form of a complaint with the courts.

This process can be complicated, so the family of the deceased generally seek counsel from a wrongful death lawyer.

Through the litigation process, the family’s legal representative will work to seek compensation for the family of the deceased through a settlement or verdict.

Does Insurance Cover Wrongful Death in Illinois?

Wrongful death cases often involve insurance coverage of both the victim and the at-fault party.

If the victim has a life insurance policy in place, his or her family can make a claim with the insurance company to receive the lump-sum benefit.

In cases where the family proves that the defendant was at fault in causing the victim’s death, they also seek compensation through a claim or wrongful death lawsuit.

The at-fault party typically makes this payment through his or her insurance coverage.

For example, in the case of a fatal trucking accident, the at-fault party would utilize his or her liability insurance to cover as much as the damages as his policy allows.

Damages Awarded Under a Wrongful Death Lawsuit

Family members of wrongful death victims can earn compensation for the damages they suffered due to the loved one’s death.

These include both punitive and compensatory damages.

This covers:

1. Economic Damages — Economic damages cover the total financial contributions the victim would have made to the family members had the death not occurred, as well as costs associated with the death such as funeral expenses and medical bills.
2. Non-Economic Damages — Non-economic damages cover intangible costs the family suffered such as loss of companionship and emotional distress.
3. Punitive Damages ­— Punitive damages are additional monetary costs the defendant owes for his harmful and/or negligent actions.

Damages compensation depends on the specific details of the case.

Courts and insurance companies determine payouts based on a number of factors including the victim’s age, earning capacity, health state prior to death, and others.

Punitive damages are typically higher in cases where the defendant’s actions were particularly outside the standard duty of care.

An experienced wrongful death attorney can help you to calculate the total damages incurred as a result of the incident.

Damages Awarded Under Survival Lawsuit

The Illinois Survival Act permits a wrongful death victim’s estate to earn compensation for damages the victim would have recovered if he or she were still alive.

In these cases, the probate court appoints a representative for the victim’s estate.

The representative can then file a claim to seek compensation on damages such as lost earnings, medical bills, funeral and other losses incurred due to the accident.

This can then be used to cover satisfy the victim’s creditors or support his or her living family.

Are There Damage Caps in Illinois?

Currently, the state of Illinois does not have any caps on damages for personal injury cases.

How to File a Wrongful Death Lawsuit in Illinois

If you suffered the loss of a loved one because of another person’s negligence or misconduct, your family could be eligible to file a wrongful death lawsuit.

Make sure that your case falls within the two or five year statue of limitations window.

Contact a wrongful death attorney to learn if your case has the potential for a settlement.

Your lawyer will gather the necessary information to determine if you have a viable case.

If he or she decides that you have a valid wrongful death case, it’s time to file a claim.

You and your attorney will work to gather all necessary evidence to prove that liability for your loved one’s death falls on the defendant.

Your attorney will form an argument around this evidence.

Your lawyer will help you navigate the civil litigation process while fighting to make the argument against the defendant.

If the verdict is made in your favor, or if the case is settled out of court, you will then earn compensation for your suffering.

How Does Illinois Wrongful Death Legislation Differ from Other States?

Every state has some form of wrongful death legislation.

These laws allow for victims’ family members or estate representatives to file suit and earn compensation for relevant damages.

While the standards are generally the same nation wide, wrongful death legislation and who can file varies on a state-by-state basis.

Illinois

• State Statute: 740 ILCS 180
• Who Can File: Decedent’s personal representative
• Distribution of Settlement: Court distributes settlement to surviving spouse and/or next of kin according to level of dependency.

Wisconsin

• State Statute: WI Stat 895.04
• Who Can File: Decedent’s personal representative, spouse, child, or parent
• Distribution of Settlement: Court may set aside portion (no more than ½) of settlement for minor children. If there are no children, entire settlement goes to the surviving spouse. If no surviving spouse, settlement goes to lineal heirs or surviving siblings.

Iowa

• State Statute: Iowa 633.336
• Who Can File: Administrator of the decedent’s estate, the spouse and surviving minor children, adult children, or parent
• Distribution of Settlement: Court distributes settlement as if personal property belonging to the state. If settlement includes damages for loss of services and support, court distributes damages as it deems equitable.

Missouri

• State Statute: Missouri Revised Statutes 537.080
• Who Can File: Decedent’s surviving spouse, children, or lineal descendants have first opportunity to file. If no such people exist, a brother or sister can bring a claim.
• Distribution of Settlement: Court responsible for distributing settlement in proportion to loss suffered.

Indiana

• State Statute: Indiana Code 34-23-1-1
• Who Can File: Descendent’s personal representative.
• Distribution of Settlement: Court may award damages to decedent’s spouse, children, or other dependents. If more than one eligible person exists, courts decide how to decide settlement.

Michigan

• State Statute: MI 600.2922
• Who Can File: Descendent’s personal representative.
• Distribution of Settlement: Court distributes settlement to the extent beneficiaries suffered damages. Pain and suffering recover is paid back into the decedent’s estate