Filing a wrongful death claim in Illinois: What you should know

Anyone who has lost a loved one due to negligence should have an understanding of Illinois’ wrongful death laws.

The weeks, months and even years following the loss of a loved one is a time of grief and sorrow. The hole that loss created is one that may never be filled again, though there are steps to take to start the road to healing. For some people in Illinois, part of that path may include filing a lawsuit against the party or parties responsible for the death.

A wrongful death claim is rarely black-and-white. There are laws that determine who may file the suit and the elements that must be present in order for the claim to be valid. Here, we explore the basics of what you should know if you have lost someone to negligence.

What constitutes a wrongful death claim?

Generally speaking, there are a few elements that should be present in order to file a lawsuit citing wrongful death. The fatality must have been caused either by someone else's negligence or because someone else intended to cause harm. Note that this means that an error or mistake may have taken place, or the deceased may have been the victim of a crime such as murder.

Additionally, the suit must seek monetary damages. Lastly, the decedent's estate must have a personal representative assigned.

Who can file a wrongful death lawsuit?

As noted above, there must a personal representative appointed to the deceased person's estate. That is the person who is permitted to file the wrongful death claim in Illinois. That person could be any of the following:

  • The deceased's spouse
  • An adult child of the deceased
  • If the deceased is a minor, it could be his or her parent

If, when the person passed away, his or her estate did not have a personal representative, it is possible that the court will appoint one.

Is there a statute of limitations?

Yes. Under Illinois law, a wrongful death lawsuit must be initiated by the later date of either one year from the person's death, or by the time limit associated with the type of case. For example, if the person died as a result of a car accident, the statute of limitations for that type of case is two years.

What damages are available?

Just as with personal injury lawsuits, wrongful death claims often result in damages for the plaintiff. This compensation is intended for the surviving spouse and/or next of kin of the deceased, such as awarding a sum commensurate with the lost income of the decedent. A jury also could assign damages based on the mental anguish the survivors have experienced. Additionally, money may be awarded for the cost of the funeral and associated expenses.

Anyone who has questions about this topic should speak with a personal injury attorney in Illinois.