An Illinois wrongful death claim is filed by the deceased person’s personal representative — not by grieving family members individually — for the exclusive benefit of the surviving spouse and next of kin, generally within two years of the death. Under the Illinois Wrongful Death Act, 740 ILCS 180, the family can recover the income the person would have provided, the value of lost companionship and guidance, and their own grief, sorrow, and mental suffering, with no statutory cap on damages.
These rules about who files, who benefits, and how money is divided surprise many families. This article walks through the Illinois Wrongful Death Act, the companion Survival Act claim, where these cases are filed, and the deadlines that control both.
Illinois codified the right to sue for a family member’s death in the Wrongful Death Act. Under 740 ILCS 180/1, whenever a person’s death is caused by a wrongful act, neglect, or default that would have entitled the person to sue had they survived, the party responsible remains liable in an action for damages even though the victim died.
The logic is straightforward. If a negligent driver had merely injured your husband, he could have sued. Because the crash killed him, the Act transfers that accountability into a claim for the people his death harmed. The wrongdoer does not escape liability because the victim cannot appear in court.
An Illinois wrongful death case still requires proof of the underlying wrong. The family must establish that the defendant was negligent or otherwise legally at fault, that the fault caused the death, and that the surviving spouse or next of kin suffered losses as a result. In practice, the case is built the same way an injury case would be, through evidence, experts, and testimony, with the added task of proving what the death took from the family. Illinois’ modified comparative fault rule applies as well: the family can recover only if the deceased was 50% or less at fault, the recovery is reduced by the deceased’s percentage of fault, and at 51% there is no recovery at all (735 ILCS 5/2-1116).
This is where the Act surprises people. Under 740 ILCS 180/2, the action is brought by and in the name of the personal representative of the deceased person, not by the grieving family members individually. The recovery, however, belongs entirely to the family: the statute directs that the amount recovered is for the exclusive benefit of the surviving spouse and next of kin.
The personal representative is the person who administers the deceased’s estate. If your loved one left a will naming an executor, that person typically serves. If there is no will, the probate court appoints an administrator, and courts commonly appoint the surviving spouse, an adult child, or a parent. Where no estate was opened, one can be created specifically so a wrongful death claim can be filed, sometimes called a special administrator appointment. A lawyer handles this step routinely, and it should not discourage any family from pursuing a claim.
“Next of kin” means the closest surviving relatives under Illinois law, typically the spouse and children. When the deceased left no spouse or children, parents and siblings may be the beneficiaries. Our Illinois wrongful death lawyer page explains how we guide families through the appointment and filing process.
The Wrongful Death Act allows the jury to award damages it deems a fair and just compensation with reference to the “pecuniary injuries” resulting from the death. That phrase sounds like it covers only money, but Illinois law defines it far more broadly, and the statute itself now says that pecuniary injuries include damages for grief, sorrow, and mental suffering of the surviving spouse and next of kin.
In practical terms, a wrongful death recovery can include the financial support the deceased would have provided over a lifetime, the value of household services such as childcare and home maintenance, and the loss of the deceased’s companionship, guidance, and society. For a child who loses a parent, the lost instruction and moral training count. Layered on top is the family’s own grief and mental suffering, which Illinois juries may compensate directly.
Every family’s losses look different, and so does every verdict. The death of a young parent with decades of earnings ahead is valued differently than the death of a retiree, yet Illinois law recognizes that companionship and grief do not depend on a paycheck.
Illinois places no caps on compensatory damages, economic or non-economic, in personal injury or wrongful death cases, including those arising from medical malpractice. The Illinois Supreme Court settled the question in Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217 (2010), striking down statutory caps on noneconomic damages in medical malpractice cases and holding that the cap “violates the separation of powers clause” and “effects an unconstitutional legislative remittitur.” A jury decides what the family’s losses are worth.
Illinois wrongful death claims are usually paired with a second, distinct claim under the Survival Act, 755 ILCS 5/27-6. That statute provides that actions for damages for injury to the person survive the person’s death, which means the claim the deceased could have brought while alive passes to the estate instead of disappearing.
The difference between the two claims is the time period they cover. The wrongful death claim compensates the family for losses caused by the death itself. The survival claim compensates the estate for what the deceased personally experienced between the injury and death: conscious pain and suffering, medical bills, lost wages, and related losses. Those losses are often substantial. A person who survives a crash for days or weeks may be treated in intensive care at a Level I trauma center such as Northwestern Memorial Hospital in Chicago or Advocate Christ Medical Center in Oak Lawn, and some victims spend their final months in rehabilitation at facilities like the Shirley Ryan AbilityLab in Chicago — care that a Life Care Plan may already have projected before death cut it short. The survival claim covers all of it, the suffering and the bills.
The claims are often filed together in the same lawsuit, but the money flows differently. Survival damages belong to the estate and pass through the will or intestacy rules, while wrongful death proceeds go directly to the surviving spouse and next of kin.
Families often worry about how a recovery will be divided, and Illinois answers with a court-supervised process. Under 740 ILCS 180/2, the amount recovered is distributed by the court to the surviving spouse and next of kin in the proportion, as determined by the court, that each person’s percentage of dependency on the deceased bears to the total dependency of all of them.
Dependency is not just financial. Courts weigh each beneficiary’s financial reliance on the deceased along with the closeness of the relationship and the loss of society and companionship each person suffered. A minor child who depended on the deceased for everything will generally receive a larger share than an independent adult sibling. Settlements involving wrongful death claims require court approval, which protects minors and ensures the division is fair. This structure is one more reason these cases benefit from experienced counsel rather than informal family agreements.
Any fatal injury caused by another’s fault can support a claim. The cases we see most often involve motor vehicle crashes, including truck and motorcycle collisions, medical malpractice, nursing home neglect, dangerous property conditions, defective products, and workplace incidents involving third parties. The underlying theory changes with the facts, but the framework under the Wrongful Death Act stays the same. If the deceased could have sued for the injury, the family can sue for the death. Our overview of personal injury claims in Illinois covers how fault is proven in these underlying case types.
Under Illinois’ general venue statute, 735 ILCS 5/2-101, suit is generally filed in the county where any defendant joined in good faith resides, or in the county where the transaction — or some part of it — giving rise to the claim occurred. In practice, a fatal crash on the Dan Ryan or the Eisenhower typically means the Circuit Court of Cook County’s Law Division at the Daley Center, while a fatal commercial truck collision on I-80 or I-88 may belong in Will County or DuPage County. Venue choice affects jury pools, timelines, and case dynamics, which is one reason experienced local counsel matters.
Under 740 ILCS 180/2, a wrongful death action generally must be commenced within 2 years after the person’s death. That clock runs from the date of death, which is not always the date of the injury. The statute contains exceptions, including a longer 5-year period when the death results from violent intentional conduct, and special timing rules tied to criminal prosecutions in homicide cases. The deadline can also be much shorter than two years: while ordinary personal injury claims follow the two-year rule of 735 ILCS 5/13-202, claims against local government defendants such as the CTA, Metra, Pace, or a municipality generally must be filed within one year under 745 ILCS 10/8-101. Claims growing out of medical malpractice have their own limitations rules.
Because the wrongful death and survival claims can be governed by different deadlines, and because appointing a personal representative takes time, families should not wait to get advice. Our guide to the Illinois personal injury statute of limitations explains the general framework and the traps.
The lawsuit is filed by the personal representative of the deceased person’s estate, such as the executor named in a will or a court-appointed administrator. The recovery belongs to the surviving spouse and next of kin, and a representative can be appointed specifically to bring the claim.
The jury may award fair and just compensation for the family’s pecuniary injuries, which under the statute include grief, sorrow, and mental suffering. Recoveries commonly cover lost financial support, lost household services, and the loss of the deceased’s companionship, society, and guidance. There is no statutory cap.
Generally 2 years from the date of death under 740 ILCS 180/2. Longer periods apply in some cases involving violent intentional conduct, and shorter notice rules can apply to claims against government entities, so deadlines should be confirmed early with a lawyer.
No family should have to untangle probate appointments, insurance companies, and statutory deadlines while grieving. Collins Law Group handles Illinois wrongful death and survival claims with the care they demand, from opening the estate to proving what your loved one’s life meant to the people left behind. We offer free consultations, we handle these cases on contingency, and we take on the legal burden so your family can focus on each other. Contact us today to talk about your loss and the options the law gives your family.
John D. Risvold is an equity partner at Collins Law Group, P.C. in Naperville, Illinois. He represents individuals and families in catastrophic personal injury and wrongful death cases, focusing on commercial trucking crashes, rideshare and autonomous vehicle litigation, medical malpractice and birth injury, and product defect claims. He has tried cases to verdict in Illinois courts, recovered more than $50 million for clients over thirteen years of practice, and has been named to Best Lawyers in America for Personal Injury Litigation and Illinois Super Lawyers.
This article is for general information only and is not legal advice. Reading it does not create an attorney-client relationship. Every case is different; if you have been injured, speak with a lawyer about your specific situation.
