Illinois Wrongful Death Lawyer

Who brings a wrongful death claim in Illinois?

The personal representative of the person's estate brings the claim. Any recovery is for the benefit of the surviving spouse and next of kin.

If no personal representative has been named, one must be appointed, usually through the probate court. Families sometimes disagree about who should serve, so it helps to start the process early. In many families, the surviving spouse or an adult child serves in that role. That person owes duties to every family member who may share in the recovery, and the court may need to approve a settlement, especially when children are involved.

The recovery is generally divided among family members based on their relationship to the person and how much they depended on them.

What can an Illinois family recover?

Illinois allows families to recover both financial losses and the personal losses of grief and companionship. There is no cap on these damages.

• Lost financial support, including wages and benefits the person would have provided.
• Lost household services, such as childcare and home maintenance.
• Loss of companionship, guidance and love.
• Grief, sorrow and mental suffering.
• Funeral and burial costs.

Illinois also allows a separate survival claim on behalf of the estate. That claim covers what the person could have recovered had they lived, such as medical bills, lost wages before death and conscious pain and suffering. Families often bring both claims together.

Proof of grief and lost companionship usually comes from the family itself. Photos, letters, family traditions and the testimony of friends and coworkers help a jury understand who the person was and what the family lost.

How long does an Illinois family have to file?

Generally 2 years from the death. The deadline does not pause while a criminal case or investigation is pending.

Two exceptions shorten the time. If the death involved a city, county, park district or transit agency, the lawsuit generally must be filed within 1 year. If the death involved medical care, the malpractice rules apply, including the requirement of a supporting health professional report. Our Illinois medical malpractice page explains that requirement.

How does fault affect a wrongful death recovery?

The family's recovery is reduced by any share of fault assigned to the person who died, and it is barred if that share is more than 50%.

Here is an example. A cyclist is killed by a delivery truck making a right turn across a bike lane. The family's damages are valued at $2,000,000. The trucking company argues the cyclist rode into the truck's blind spot. If a jury assigns 20% of the fault to the cyclist, the family recovers $1,600,000. At 50%, it recovers $1,000,000. At 51%, it recovers nothing.

Video, witness accounts, truck mirror and camera data, and reconstruction evidence often decide that split.

How is the civil case different from a criminal case?

The criminal case is brought by the state to punish the person responsible. The civil case is brought by the family to recover compensation.

The civil case uses a lower burden of proof, so a family can win even if there is no conviction. A conviction can help, but waiting for the criminal case can risk the civil deadline. Families can usually pursue both at the same time.

Police reports, witness statements and reconstruction work done for the criminal case can often help build the civil claim. Families should still be careful about speaking with the other side's insurer while both cases are pending.

Which deaths most often lead to Illinois claims?

Many Illinois wrongful death claims arise from:

1. Car, truck and motorcycle crashes. See our Illinois truck accident page.
2. Pedestrian and cyclist deaths in Chicago and the suburbs. See our page on pedestrian accidents.
3. Construction, warehouse and rail accidents.
4. Medical errors in hospitals and care facilities.
5. Fires, falls and unsafe conditions in apartment buildings.

If the person who died was working, workers' compensation death benefits may apply against the employer, but a separate wrongful death claim may exist against another company or driver.

What should the family do first?

• Keep the death certificate, police reports and medical records.
• Do not give recorded statements to any insurance company.
• Save pay stubs, tax returns and benefits statements.
• Ask about opening an estate if no personal representative has been named.

For deadlines and other claim types, see our main Illinois page. Our team offers a free case review, and there is no fee unless we win.