Guide · Serious Injury · Illinois

Wrongful Death and Survival Actions in Illinois: Two Claims, One Family

When someone dies because of another’s wrongdoing, Illinois law provides not one claim but two, and each compensates a different loss.

By Lincoln Square Law · 8-minute read

When a person dies because of someone else’s negligence or misconduct, the family is asked to think about the law at the worst possible time. Most people expect a single lawsuit. Illinois actually provides two separate claims that arise from the same death, brought by the same representative, for different losses and different recipients. Understanding how they fit together helps a family protect both, meet the deadlines, and avoid mistakes that are hard to undo, such as signing a release with one insurer before the full picture is known.

Two claims, two different losses

The wrongful death claim compensates the family for what the family lost. The Wrongful Death Act allows an action whenever a death is caused by a wrongful act, neglect, or default that would have entitled the person to sue had he or she survived (740 ILCS 180/1). The recovery belongs to the surviving spouse and next of kin, not to the estate, and it is measured by their losses: the financial support, services, and guidance the person would have provided, and the loss of the relationship itself.

The survival claim compensates for what the person who died suffered before death. Under the Survival Act, a claim for personal injury does not end when the injured person dies (755 ILCS 5/27-6). It continues in the hands of the estate and can include conscious pain and suffering between the injury and death, medical expenses, and lost earnings during that period. Because the recovery belongs to the estate, it passes through the estate to heirs or beneficiaries under the will, subject to the estate’s obligations.

The two claims are usually filed together in one lawsuit, but they are counted separately and can lead to different distributions. A case where the person died instantly may have a limited survival claim. A case involving days or weeks of conscious suffering may have a substantial one.

Who brings the claims

Individual family members do not each file their own suit. Both claims are brought by the personal representative of the deceased person’s estate, typically the executor named in a will or an administrator appointed by the probate court (740 ILCS 180/2). Opening the estate is therefore often the first legal step, and it takes time. When the lawsuit is the estate’s only significant asset and no estate has been opened, Illinois law allows a court to appoint a special administrator for the purpose of pursuing the claim (740 ILCS 180/2.1). Choosing the right path early prevents delay later.

The representative acts for everyone entitled to share in the recovery. That can create tension in families with a surviving spouse and children from different relationships, or with adult children who disagree about strategy. Those issues are easier to address at the start than after a settlement offer arrives.

What the family can recover

The Wrongful Death Act allows the jury to award fair and just compensation for the pecuniary injuries resulting from the death, and those injuries include the grief, sorrow, and mental suffering of the surviving spouse and next of kin (740 ILCS 180/2). In practice, damages commonly include lost financial support and benefits, the value of household services, the loss of guidance and companionship, and the family’s grief. Illinois courts recognize that close family relationships themselves carry value. For example, the Illinois Supreme Court has held that parents may recover for the loss of a child’s society (Bullard v. Barnes, 102 Ill. 2d 505 (1984)).

The Act was amended in 2023 to allow punitive damages in some wrongful death actions where the conduct warrants them. The amendment does not apply to every defendant, and certain categories of claims, including claims against public entities and professional malpractice claims, remain treated differently. Whether punitive damages are available depends on the defendant and the facts, and should be analyzed early because it affects both pleading and settlement value.

The recovery in a wrongful death action is distributed among the spouse and next of kin by the court, which considers each person’s dependency on the person who died (740 ILCS 180/2). That is why the distribution is not simply equal shares, and why a settlement must be approved and allocated rather than paid in a lump sum to whoever negotiates it.

Medical and funeral expenses

Families are often surprised that the bills from the final hospitalization and the funeral are not automatically part of the wrongful death recovery. Who can seek them depends on who paid, or is responsible for paying, them. They may be pursued through the survival claim on behalf of the estate, and a spouse or parent who is responsible for family expenses may have a claim connected to the Family Expense Act (750 ILCS 65/15). Keeping every bill and receipt, and recording who paid it, lets counsel place each expense in the claim where it belongs.

How fault affects the claims

Illinois’ comparative fault rules apply. If the person who died is found more than 50 percent responsible, recovery is barred, and at 50 percent or less damages are reduced proportionally (735 ILCS 5/2-1116). The Wrongful Death Act also addresses a beneficiary’s own fault: a beneficiary whose fault is more than 50 percent of the proximate cause of the death is barred from sharing in the recovery, and that share does not pass to the other beneficiaries (740 ILCS 180/2). Cases involving a family member as a driver or caregiver need careful handling for that reason.

Deadlines

The wrongful death action generally must be commenced within two years after the death (740 ILCS 180/2). The statute provides longer periods when the death resulted from violent intentional conduct, allowing suit within five years of the death, and when a defendant is charged with certain homicide offenses, allowing suit within one year after the criminal case concludes. Those extensions apply to claims against the person who committed the conduct, not necessarily to other defendants.

The survival claim follows the limitations period of the underlying injury claim, generally two years for personal injury (735 ILCS 5/13-202). If the person dies before that period runs, the representative may commence the action within one year after the death, even if the original period would have expired sooner (735 ILCS 5/13-209). Claims against local public entities carry a one-year period (745 ILCS 10/8-101(a)), and some defendants require notice even sooner. Because the dates can differ between the two claims and among defendants, each should be calendared separately at the outset.

Liens, insurance, and settlement structure

Medical providers, health plans, and government programs may assert liens or reimbursement claims against the recovery, particularly against the survival claim, which covers medical expenses. Allocation between the wrongful death claim and the survival claim therefore has real consequences for what the family receives. Insurance may also come in layers: the at-fault party’s liability coverage, umbrella policies, and, in vehicle cases, the decedent’s own underinsured motorist coverage (215 ILCS 5/143a-2). A settlement with one insurer can affect rights against another, so releases should be reviewed before anyone signs.

What to do first

• Preserve evidence: crash reports, photographs, medical records, the vehicle or product involved, and any video. Send preservation requests early, especially where a business or public entity controls the evidence.
• Open the estate or confirm who will serve as representative, so the claims can be filed on time.
• Gather financial information: income records, tax returns, benefits, and household contributions that show what the family lost.
• Do not sign releases or give recorded statements to an insurer before the claims have been evaluated.
• Calendar every deadline that may apply, including shorter public-entity periods.

No legal process can repair the loss. What the law can do is hold the responsible party accountable and give the family financial security to move forward. Families who understand the two claims, and who protect the evidence and the deadlines early, are in the best position to have both claims heard fully.