When a loved one tragically dies due to the negligence or misconduct of another party, family members often seek legal recourse to hold those responsible accountable. In Illinois, there are two primary legal mechanisms for doing so: wrongful death actions and survival actions. While both provide a way for families to recover compensation after a death, they address different types of losses and follow distinct legal paths.
In this article, we’ll explore the critical distinctions between wrongful death and survival actions, and how each applies in Illinois. By understanding these differences, plaintiffs can better navigate the legal landscape and maximize the recovery of damages owed for their loss.
What Is a Wrongful Death Action?
A wrongful death action is a lawsuit filed by the survivors of a deceased individual (the decedent) to recover damages they have personally suffered as a result of the decedent’s death. The purpose of a wrongful death action is to compensate the family or dependents of the deceased for the losses they have endured due to the untimely death, which was caused by another party’s wrongful act, neglect, or default.
Key Elements of a Wrongful Death Claim
For a wrongful death action to succeed in Illinois, the plaintiff must establish the following elements:
- Duty: The defendant had a legal duty to act in a way that would not cause harm to the decedent.
- Breach of Duty: The defendant breached that duty through negligence, recklessness, or an intentional act.
- Causation: The breach of duty was the proximate cause of the decedent’s death.
- Damages: The survivors or dependents of the decedent have suffered measurable damages as a result of the death.
Illinois law, specifically the Illinois Wrongful Death Act, governs wrongful death claims and provides specific rules regarding who can file the lawsuit, what damages can be recovered, and how compensation is distributed.
Who Can File a Wrongful Death Lawsuit?
Under the Illinois Wrongful Death Act (740 ILCS 180/), the wrongful death action is typically filed by the personal representative of the decedent’s estate. This representative is often named in the decedent’s will or appointed by the court if no such designation exists.
The beneficiaries of a wrongful death action are the surviving spouse and next of kin. This typically includes:
- The spouse
- Children
- Parents (in the absence of a spouse or children)
- Other dependents who may have relied on the decedent
Damages in a Wrongful Death Action
The primary focus of damages in a wrongful death case is on compensating the surviving family members for the loss of their loved one. Common types of damages include:
- Loss of financial support: Compensation for the income the deceased would have provided had they lived.
- Loss of consortium: The loss of companionship, love, and guidance that the decedent provided to their spouse and children.
- Grief, sorrow, and mental suffering: Compensation for the emotional pain and suffering endured by the survivors.
It’s important to note that damages in wrongful death claims are intended to benefit the survivors of the decedent, not the decedent’s estate. Any award or settlement reached in a wrongful death action is distributed to the beneficiaries, as defined by the court.
Statute of Limitations for Wrongful Death
In Illinois, the statute of limitations for filing a wrongful death claim is generally two years from the date of death. Failing to file within this time frame typically results in the dismissal of the case, barring recovery for the survivors.
What Is a Survival Action?
While wrongful death actions focus on the harm suffered by the survivors, a survival action is brought on behalf of the decedent’s estate to recover damages that the decedent would have been entitled to if they had survived. These claims allow the decedent’s estate to recover compensation for the injuries and losses the decedent personally suffered before their death, whether it was immediate or occurred after a period of suffering.
A survival action is based on the Illinois Survival Act (755 ILCS 5/27-6), which essentially “preserves” the decedent’s right to sue for the personal injury they experienced before their death.
Key Elements of a Survival Action
To succeed in a survival action, the plaintiff must prove the same elements of negligence that would be required in a personal injury claim had the decedent survived. These elements include:
- Duty: The defendant owed a duty of care to the decedent.
- Breach of Duty: The defendant breached that duty.
- Causation: The breach of duty directly caused the decedent’s injuries or death.
- Damages: The decedent suffered losses or harm as a result of the defendant’s conduct before their death.
Who Can File a Survival Action?
Like a wrongful death action, a survival action must be filed by the personal representative of the decedent’s estate. However, unlike wrongful death claims, the compensation from a survival action becomes part of the decedent’s estate and is distributed according to the terms of the decedent’s will or state intestacy laws if no will exists.
Damages in a Survival Action
A survival action allows for recovery of the damages that the decedent could have claimed if they had survived. Common damages include:
- Medical expenses: Costs for medical care and treatment that the decedent received between the time of injury and death.
- Pain and suffering: Compensation for the physical pain and mental anguish the decedent endured before their passing.
- Lost wages: Income the decedent lost from the time of injury until death.
- Property damage: Compensation for any personal property that may have been damaged in the incident leading to the decedent’s injury or death.
Importantly, a survival action does not compensate for damages suffered after the decedent’s death, such as the financial or emotional losses of surviving family members. Instead, it strictly pertains to the decedent’s personal damages before they passed away.
Statute of Limitations for Survival Actions
In Illinois, the statute of limitations for a survival action is typically the same as that for the underlying personal injury claim—usually two years from the date of the injury or death, depending on the circumstances. However, certain factors, such as the discovery rule or the decedent’s age, can affect the statute of limitations.
When Should You Pursue Both Claims?
In many cases, families can file both wrongful death and survival actions simultaneously. This is especially common when the decedent did not die immediately but instead suffered for some time before passing away. Filing both claims allows survivors to recover damages for their personal loss while also seeking compensation for the pain, suffering, and medical costs the decedent experienced before death.
For example, if a person is injured in a car accident caused by another driver’s negligence and later dies from their injuries after months of hospitalization, the family could pursue both a wrongful death action and a survival action. The survival action would compensate the estate for the medical expenses and suffering endured by the decedent, while the wrongful death action would address the losses suffered by the surviving family.
Navigating Wrongful Death and Survival Actions in Illinois
The distinctions between wrongful death and survival actions in Illinois can be nuanced but are critical in ensuring that both the decedent’s estate and their survivors receive the appropriate compensation. While wrongful death actions focus on the emotional and financial losses of the survivors, survival actions aim to recover damages for the suffering and expenses the decedent endured before passing.
If you are facing the loss of a loved one due to another party’s negligence, it is essential to work with an experienced Illinois personal injury attorney to determine which claims apply to your situation. An attorney can help you navigate the complexities of wrongful death vs. survival actions, ensuring that your family receives the maximum compensation to which you are entitled.
How to Find an Excellent Personal Injury Attorney to Handle Your Case
Finding the right personal injury attorney can make all the difference in successfully navigating a wrongful death or survival action case. Here are some key steps to help you find an excellent attorney:
- Research and Recommendations: Start by seeking referrals from friends, family, or trusted professionals who have had positive experiences with personal injury attorneys. You can also research local attorneys online by reading client reviews, looking at case outcomes, and checking their experience with wrongful death and survival actions specifically.
- Experience and Expertise: Look for an attorney who specializes in personal injury law and has extensive experience with wrongful death and survival actions in Illinois. The attorney should be well-versed in state laws and have a track record of successful cases in similar circumstances.
- Consultations: Schedule consultations with multiple attorneys to assess their approach, communication style, and compatibility. An excellent attorney will listen carefully, ask relevant questions, and provide a clear outline of how they plan to handle your case.
- Fee Structure: Ensure the attorney works on a contingency fee basis, meaning they only get paid if you win the case. This arrangement reduces financial risk for you and ensures the attorney is motivated to secure the best outcome.
- Reputation and Resources: Choose an attorney or firm with a strong reputation and the resources necessary to take your case through trial if needed. They should have access to expert witnesses, investigators, and a legal team capable of managing all aspects of your case.
By carefully considering these factors, you can find an attorney who will advocate effectively on your behalf, helping you secure the compensation and justice your family deserves.
Working With Palermo Law Group
The death of a loved one is an incredibly difficult and emotional time, and navigating the complexities of a wrongful death attorney or survival action claim can feel overwhelming. At Palermo Law Group, we understand the profound loss you're facing and are here to help guide you through your legal options. Whether you're seeking compensation for medical bills, funeral expenses, or burial expenses, our experienced attorneys are dedicated to holding the responsible party accountable.
We provide a free consultation to discuss the key differences between a survival action claim and a wrongful death claim, ensuring that you fully understand the legal action available to you. Our law firm is committed to securing the justice and compensation your family deserves, allowing you to focus on healing during this difficult time. Contact Palermo Law Group today to begin working with a compassionate and knowledgeable team that will fight for your rights.
For a free consultation with Palermo Law Group, contact our law firm by calling (630) 684-2332 or visit our website at https://www.palermolawgroup.com/.
