Who Can File a Wrongful Death Lawsuit?

The Illinois Civil Liabilities Wrongful Death Act (740 ILCS 180/) defines wrongful death as a person’s untimely demise due to other people’s negligence or wrongful actions. The state also considers it wrongful death if the deceased (or decedent) could have filed for personal injury claims if they survived. But since they can no longer defend their right to claim compensatory damages, other people can have the right to file a lawsuit on their behalf. 

Who Can File a Wrongful Death Lawsuit in Chicago?

Illinois law allows the immediate family and, potentially, other relatives of the decedent to file a wrongful death lawsuit. Although all states have their own set of laws on wrongful death claims, they all allow immediate family members to initiate a lawsuit. 

In Illinois, immediate family members may indeed file a wrongful death claim, but they must be the decedent’s personal representative.

A personal representative is the legal title given to someone trusted to act as an executor. It’s customary for adults, especially those with substantial wealth and assets, to name an executor who will carry out the terms of their will. As such, the personal representative may or may not be a blood relative of the decedent.

What if the decedent did not prepare a will or name an executor before their death? The court can assign a decedent’s representative, and they often pick from among the surviving family members. Here are the most common choices:

  • Spouse
  • Parent
  • Adult child (may or may not be the eldest)
  • Siblings (if the parents are deceased and the decedent is unmarried and has no children)
  • Grandparents, grandchildren, or other distant relatives (if there are no other next of kin)
  • People who relied on the decedent for financial support

Can a friend hire a wrongful death attorney in Chicago and file a wrongful death lawsuit on behalf of the decedent? Unless they are the decedent’s executor or were given power of attorney before the decedent’s death, then no, friends cannot file a case. Regardless, even if a friend is permitted to file the wrongful death suit, they cannot personally recover damages for the death of their friend. 

The purpose of a wrongful death lawsuit is to seek damages in the form of financial compensation. Therefore, in general, only immediate family members and/or other relatives can recovery damages for wrongful death. 

Beneficiaries for Wrongful Death Claims

Knowing who can file a wrongful death lawsuit in Chicago is important because it affects who receives the damages awarded by the court.

According to Section 2 of the 740 ILCS 180/2, the amount received in a wrongful death claim will be “for the exclusive benefit of the surviving spouse and next of kin” of the deceased. Moreover, the court may decide how to distribute the compensation among the surviving spouse and next of kin.

This explains why the right to file a wrongful death lawsuit is first awarded to the immediate family, as they are the ones to receive compensation from the people or entities responsible for their loved one’s untimely death.  

The deceased’s estate may also receive compensation for lost wages, damaged property, grief and suffering, medical expenses bills – claims the decedent would have filed themselves if they did not succumb to their injuries; but the lawsuit will be under the Illinois Survival Act. This is called a survival action, rather than a wrongful death action. However, both claims can be pursued. 

What if the decedent’s executor or personal representative is not a next of kin? Based on this section of the Wrongful Death Act, they are unlikely to get any compensation. However, there could be an exception if they are legal dependents of the decedent.

What if the decedent has no immediate family? The compensation will pass to the next of kin. Unfortunately, things can get complicated because Illinois law identifies “next of kin” as the next closest blood relation (as defined by the Probate Act of 1975). 

Below is the order in which Illinois law recognizes the closest next of kin:

  • Immediate family: Spouse and children
  • Next of kin
    • First: Grandchildren
    • Second: Parents and siblings
    • Third: Nieces and nephews
    • Fourth: Grandparents

The disadvantage of the “next of kin” rule is it tends to disregard the decedent’s pre-existing relationships (or the lack thereof) with distant relatives. Even if the decedent were on bad terms with an estranged sibling or spouse, for example, the latter could receive compensation instead of a fourth cousin with whom the decedent had a genuinely close relationship.


Statute of Limitations for Wrongful Death in Chicago

The state of Illinois has a two-year window from the day of the decedent’s passing to file a wrongful death claim. If the personal representative doesn’t press charges within the year, they will generally lose the chance to demand compensation from the people or entities responsible for their loved one’s death. 

There are exceptions to this rule:

  • If the decedent died because of violent intentional conduct, the statute of limitations is five years from the date of death. 
  • If a criminal trial is held first, the personal representative can follow up with a wrongful death claim one year after the conclusion of the criminal case.

Initiating legal action while grieving is understandably hard for many. While no money can compensate for the pain of losing someone you love, it is a form of justice for surviving family members. The damages can also lessen the financial burden of medical, funeral costs, and potentially lost income. Therefore, the immediate family of an accidental death victim must find an experienced wrongful death lawyer as soon as possible. 

What Can a Wrongful Death Lawyer Do?

Recall that the purpose of filing a wrongful death claim is to seek compensation against the responsible party. Thus, a wrongful death suit is a civil action which means the goal is to seek financial damages (unlike a criminal action, which seeks to punish the convicted party by sentencing them to a jail term or other lawful punishment). A wrongful death lawyer, therefore, will demand a monetary recovery and urge the court to grant the surviving family maximum compensation.

Here’s what a wrongful death attorney in Chicago does when filing a claim:

  • Take the lead in a wrongful death claim or survival action
  • Investigate the events leading to the decedent’s death
  • Collect evidence proving the defendant negligently caused the decedent’s death
  • Determine the full extent of the losses the decedent and their dependents experienced
  • Determine the maximum potential value that surviving family and/or estate deserves as compensation
  • Review the decedent’s existing insurance policies and handle settlement negotiations with the insurance company
  • Negotiate damages with the defendant’s attorneys and/or insurance company
  • Take the case to court if necessary

Having an experienced wrongful death attorney in Chicago as your legal representative can give you a significant advantage and increase your chances of receiving the compensation you deserve. You’ll want a clever legal representative who fiercely negotiates for the best outcome for you.

A top wrongful death lawyer is vital when the cause of death is from medical malpractice. A Chicago medical malpractice lawyer would have to prove that the doctor, nurse, and/or hospital responsible for the decedent’s care had been negligent and caused their death. If you are a personal representative and next of kin of a victim of medical malpractice, file a wrongful death claim with the help of an experienced Chicago medical malpractice lawyer.

Kroot Law Fights for Your Right to Fair Compensation

As the immediate family or next of kin of a wrongful death victim, you have every right to receive compensatory damages from the people or entities responsible for your loss. Kroot Law, a Chicago medical malpractice and personal injury firm, can help. 

We have years of experience filing civil lawsuits involving wrongful death in Illinois. Whether it’s medical malpractice, nursing home liability, automotive, aviation accidents, or other injury claims, our personal injury lawyer is one of the best people to represent you. Contact us today to schedule a free consultation.