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Who Has The Legal Right To File A Wrongful Death Suit In Illinois?

Updated on
January 5, 2021
Article written by
Attorney Kevin O'Flaherty

In this article, we will discuss who can legally file a wrongful death suit in Illinois. We will answer the following questions:


  • Who Can File A Wrongful Death Lawsuit In Illinois?
  • When Is It Appropriate To File A Wrongful Death Claim?
  • What Evidence Is Necessary To Prove Wrongful Death?
  • What Compensation Can Be Awarded In A Wrongful Death Lawsuit?
  • Is There A Statute Of Limitations For Wrongful Death Claims In Illinois?


Losing a family member leads to more than grief and sorrow; it can sometimes leave a financial hole that makes moving forward all the more difficult. But what if the loss was due to a fatal accident that was not the decedent's fault? It's normal to seek retribution for a wrong that took your loved one but to ensure that their passing won't leave the rest of the family destitute.


Who Can File A Wrongful Death Lawsuit In Illinois?


According to the law in Illinois, the deceased person's next of kin has the first right to file a wrongful death claim. If the decedent doesn't have a surviving spouse or children, then the next in line relatives, such as a parent or sibling, may be able to bring a wrongful death suit to court. Ultimately, the familial and financial relationship between the decedent and the individual seeking a wrongful death claim will determine eligibility and what type of damages might be awarded. For example, if Joe dies because a semi-truck strikes the back of his vehicle and his brother Steve files a wrongful death claim, the court may rule that Steve does not rely financially on Joe and limit the kind of damages sought or deny the request. However, in most cases, if the person who died left an estate with debt, such as a mortgage and car loan, the lawsuit can seek damages to cover these costs as well as any funeral costs. 


When Is It Appropriate To File A Wrongful Death Claim?


Wrongful death claims are common with car accidents, but nearly any fatal incident stemming from carelessness, recklessness, misconduct, or intentional conduct can necessitate a wrongful death lawsuit. Some examples include:


  • Accidents at work;
  • Accidents on the premises of public and private property ("slip and fall" accidents).
  • Being physically assaulted resulting in death;
  • A fatal injury due to dangerous or defective product;
  • Medical errors, including surgical errors, improper record-keeping, wrong medication, etc.; and
  • Motor vehicle accidents where the other party is clearly at fault.


What Evidence Is Necessary To Prove Wrongful Death In Illinois?


Like other types of personal injury claims, wrongful death lawsuits are based on the concept of negligence. Negligence means the other party failed to uphold an expected societal norm, such as the supermarket not reasonably providing a safe shopping space resulting in a wrack of wine bottles falling and crushing a customer. In a negligence case, the plaintiff must prove the following items are true:


  • The defendant has a duty to exercise reasonable caution in its interactions with society;
  • The defendant failed to uphold its responsibility to the victim through its careless, reckless, or intentional acts, resulting in the victim's death;
  • The failure to maintain its duty was the direct cause of the victim's death; and
  • Losses were suffered as a direct result of the victim's death.


The above four points are flexible, depending on the cause of death. For example, death due to intentional conduct or the random failure of a product wouldn't stand up in court as a wrongful death due to negligence claim; here, an attorney would cite a different reason for wrongful death that is appropriate for the situation.


What Compensation Can Be Awarded In A Wrongful Death Lawsuit?


Under Illinois wrongful death law, parties eligible for compensation from a wrongful death lawsuit may receive:


  • Damages to cover funeral expenses;
  • Damages to cover loss of inheritance;
  • Damages to cover emotional distress;
  • Damages to cover loss of financial support;
  • Damages to cover medical costs related to the accident;
  • Damages for loss of companionship and parental guidance; and
  • The plaintiff may also seek punitive damages against the defendant.


The damages awarded will ultimately depend on the familial and financial relationship between the eligible party and the decedent. 


Is There A Statute Of Limitations For Wrongful Death Claims In Illinois?


The statute of limitations on wrongful death claims in Illinois is two years from the date of the victim's death. After two years, the court will deny any wrongful death lawsuit. However, if the potential plaintiff is a minor, such as the decedent's child, the two-year statute does not start until the minor turns eighteen.


Who Has The Legal Right To File A Wrongful Death Suit In Illinois?
Author

Attorney Kevin O'Flaherty

Kevin O’Flaherty is a graduate of the University of Iowa and Chicago-Kent College of Law. He has experience in litigation, estate planning, bankruptcy, real estate, and comprehensive business representation.

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