Guide · Serious Injury · Illinois

Who Can Bring a Wrongful-Death Claim in Illinois?

The estate’s representative files, the closest family recovers, and the court divides the recovery by dependency. How it works for a family.

By Lincoln Square Law · 8-minute read

When a family loses someone because of another person’s negligence, the legal questions arrive at the worst possible time. Who is allowed to file? Does it matter that there was no will? What if family members disagree, or one of the children is a minor? Illinois answers these questions through the Wrongful Death Act and the Probate Act, which work together in ways that surprise many families. This guide focuses on the people and the process: who files, who shares in any recovery, how the money is divided, and the first steps a family takes. Our companion article on wrongful death and survival actions explains the two claims and the damages each one covers.

The claim belongs to the estate’s representative, not to one relative

An Illinois wrongful death action must be brought in the name of the deceased person’s personal representative (740 ILCS 180/2). A spouse, parent, or adult child cannot simply file in their own name, even if they are the person most affected. The representative sues on behalf of the family members the statute protects, and any recovery is for their exclusive benefit, not for the estate’s creditors.

The personal representative is usually an executor named in a will or an administrator appointed by the probate court when there is no will. The court issues letters of office that authorize the representative to act. Where no one has sought letters of office, the Wrongful Death Act allows the court in which the action is filed to appoint a special administrator to bring the claim (740 ILCS 180/2.1). That option can save time, but whether a full estate should be opened depends on whether the deceased person had property, debts, or other claims that require administration.

Who the recovery is for: the spouse and next of kin

A wrongful death recovery is for the exclusive benefit of the surviving spouse and next of kin (740 ILCS 180/2). “Next of kin” refers to the relatives who would inherit if the person had died without a will, under the Probate Act’s order of descent (755 ILCS 5/2-1). In practice, that usually means:

• A surviving spouse and children when the deceased person was married with children.
• Children when there is no surviving spouse.
• Parents and siblings when there is no spouse and there are no descendants.
• More distant relatives only when closer ones do not survive.

A will does not decide who benefits from a wrongful death recovery. The statute does. A person named in a will, but not among the spouse and next of kin, does not share in the wrongful death recovery on that basis, although the estate’s own claims, such as the survival action, pass through the estate.

How the money is divided: dependency, not just family rank

The Act directs that the recovery be distributed by the court to the spouse and next of kin in proportion to each person’s dependency on the deceased person (740 ILCS 180/2). The court considers the actual relationship and support, both financial and personal, not only the order of inheritance. A minor child who depended on a parent for support, guidance, and care may receive a larger share than an adult child who lived independently.

A hypothetical illustrates the point. A father dies in a crash, leaving a wife, a ten-year-old daughter who lived with him, and a thirty-year-old son who lives in another state and was financially independent. All three are next of kin, and all three suffered a real loss. The court, however, will consider who depended on him for support, care, and guidance. The spouse and the young daughter would ordinarily be expected to show greater dependency than the adult son, and the distribution would reflect that, with the daughter’s share protected until she is an adult. The exact division depends on the evidence and the court’s judgment, not on a formula.

Because the court decides the distribution, family members should expect a hearing where evidence of each person’s relationship with and dependence on the deceased person may be presented. When family members agree on a proposed allocation, the process is usually simpler, but the court must still approve it.

Minors and family members who need protection

When a minor or a person with a disability shares in a recovery, the court will require that the share be protected. That usually means funds held for the minor under the supervision of the probate court until the minor reaches adulthood, or placed in a structure approved by the court. Parents cannot simply receive a child’s share for general use. These protections are part of why wrongful death settlements are presented to the court rather than paid directly to the family.

What the family can recover

The Act allows recovery of damages for the loss the spouse and next of kin suffered, including their grief, sorrow, and mental suffering, and the loss of the deceased person’s companionship, society, and support (740 ILCS 180/2). A separate survival action, brought through the estate, recovers for what the deceased person suffered before death and for expenses such as medical bills (755 ILCS 5/27-6). The two claims are usually brought together in one lawsuit. Reasonable medical and funeral expenses may be recovered in the wrongful death action if the spouse or next of kin paid them (740 ILCS 180/2).

When family members disagree

Disagreements are common, and they are rarely about the lawsuit itself. Siblings may disagree about who should serve as representative, a parent may have been estranged from the deceased child, or a former spouse may raise a claim on behalf of a child. The probate court resolves who serves as representative, and the court in the wrongful death case resolves how the recovery is divided. A representative owes duties to all of the beneficiaries, not just to the relatives who asked the representative to serve. Early, candid communication among family members, with counsel explaining the process, prevents many of these disputes from delaying the case.

Deadlines

A wrongful death action generally must be filed within two years after the death, with longer periods in limited circumstances such as deaths caused by violent intentional acts or where a criminal case is pending (740 ILCS 180/2). If a local public entity or its employee may be responsible, a one-year limit may apply (745 ILCS 10/8-101). Opening an estate or obtaining an appointment takes time, which is why these steps should begin early.

The first steps for a family

• Gather the basic documents. Death certificate, any will, marriage and birth certificates, and information about the deceased person’s income and support of family members.
• Identify the likely representative. Decide, with counsel, whether an estate must be opened or a special administrator appointed.
• Preserve evidence. The facts of the incident, including vehicles, video, and records, should be preserved immediately.
• Avoid statements to insurers. Refer insurers to counsel and do not sign releases.
• Keep records of expenses. Medical, funeral, and burial bills, and who paid them.
• Notify employers and benefit plans. Life insurance, pension, and workplace benefits are separate from the wrongful death claim, but they often require prompt notice and may affect planning.
• Talk as a family. Understanding that the court will divide any recovery by dependency helps set expectations early.

Who files, who benefits, and how the court divides recovery

In Illinois, a wrongful death claim is filed by the personal representative, for the benefit of the surviving spouse and next of kin, and any recovery is divided by the court according to each person’s dependency on the person who died. A will does not control that division, and minors’ shares are protected by the court. Knowing these rules at the start helps a grieving family focus on what matters while the legal process moves forward.