How Long Do I Have to File a Wrongful Death Lawsuit in Illinois?

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Wrongful death claims must typically be filed within two years of your loved one’s death in Illinois, although there are exceptions for cases filed by minors. Filing a wrongful death lawsuit also typically requires opening an estate in probate court, which can be complicated and time consuming. Before you file a wrongful death claim, you should contact your attorney at the outset of any case to ensure you meet all deadlines and procedural requirements and to avoid getting your case dismissed. Experienced wrongful death attorneys can help ensure the successful outcome of your wrongful death personal injury claim.

The two-year statute of limitations to bring Chicago wrongful death lawsuits is very strict, and judges are usually obligated to dismiss your case if you fail to bring a suit in time. To avoid the risk of losing your case because you did not file it in time, you should contact your attorney as soon as possible so that the attorney can investigate your claims, identify the proper defendants, and file your case within the two year deadline.

How long do I have to file a wrongful death lawsuit Infographic

What is the Wrongful Death Act?

In the past under traditional common law, whenever a person died, any personal injury claims they may have had against a negligent person (a tortfeasor) were extinguished, and their loved ones were unable to recover compensation even when they were killed due to that tortfeasor’s negligence. To fix this injustice, the Illinois Legislature passed the Illinois Wrongful Death Act, which allows plaintiffs to recover damages when their loved one is killed due to the tortfeasor’s negligence.

The act allows loved ones and surviving family members to recover compensation for pecuniary injuries such as grief, sorrow, and mental suffering according to Illinois law. In addition, the Probate Act also allows beneficiaries of the deceased’s estate, such as surviving family members, to recover for the deceased’s pain and suffering, past and future lost wages, loss of a normal life, and medical bills. In certain circumstances, spouses and close relatives may also file their own claims for loss of consortium for loss of love and companionship and for loss of services.


What is the Illinois wrongful death statute of limitations?

The statute of limitations for wrongful death claims in Illinois is controlled by the Illinois Wrongful Death Act (740 ILCS 180/2). Under the act, all actions must be filed within two years from the date of death. This two-year deadline begins on the date of death and not on the date of the accident that caused the death. For example, if your loved one was badly injured in a car crash but did not die until two months after the crash, the two-year deadline starts on the date of death.

One exception to the two-year rule arises when the claimant is a minor child. In this instance, the two-year limit may tolled until the minor becomes an adult. Once the minor is an adult, they must initiate litigation.

Where a claimant is a minor, the time to file a wrongful death suit may be extended by up to two years after the minor turns 18 in some situations.

Another narrow exception to the two year statute of limitations rule arises where the Chicago wrongful death was the result of violent intentional conduct such as homicide or manslaughter, in which case the statute of limitations is five years.


What if my case is not filed within two years?

With very few exceptions, if you do not file wrongful death case within two years, courts are almost always required by law to dismiss your case even if you are not represented by an attorney. Therefore, it is critical to contact your attorney as soon as possible so that your attorney can conduct a thorough investigation and file a lawsuit before the statute of limitations expires.


What if I do not know who to sue?

Sometimes it may be unclear who the proper defendant is in the case. This most often occurs when suing businesses because many companies and corporate franchises may use trade names in front of their customers that are different than their corporate name (for example, KFC is owned by Yum! Brands).

Unfortunately, if you sue the wrong entity and the statute of limitations subsequently expires, you cannot amend your complaint to add the correct entity, even if you sued the wrong entity by mistake. One narrow exception of this rule applies to misnomers, which occur where the correct defendant is sued and served with summons but the defendant’s name is either misspelled or is called by the wrong name.

To avoid the common pitfalls associated with identifying and suing the correct defendant, you should contact your attorney to arrange for a consultation as soon as possible. Your attorneys can review any documents and conduct an investigation to identify every defendant responsible for your loved one’s death.


Wrongful Death vs. Murder

Unlike murder, wrongful death claims do not require that the defendant intended for the accident to happen. Most of the time, claims for wrongful death constitute ordinary negligence.

To prove negligence in wrongful death lawsuits, the plaintiff must show:

  1. the defendant owed the deceased person a duty of care,
  2. the defendant breached that duty of care,
  3. the defendant caused the deceased person’s death, and
  4. the plaintiff suffered damages.

Damages include emotional injuries (pain and suffering, grief, and loss of affection) as well as financial injuries (lost wages, loss of services, and medical bills).


Who gets the money in a wrongful death lawsuit in Illinois?

The deceased’s spouse and family members typically receive any money recovered in a wrongful death lawsuit. A wrongful death lawsuit is usually a two count claim for 1) survivorship under the Survival Act (755 ILCS 5/27-6) and 2) wrongful death under the Wrongful Death Act (740 ILCS 180/0.01, et al.).

In the survival claim, the beneficiaries of the deceased’s estate recover any damages that the deceased could recover as if he were still alive. If there is a will, the beneficiaries are anybody named in the deceased’s will, regardless of whether they are a close family member or spouse. These beneficiaries may recover damages for:

  • Pain and suffering
  • Loss of a normal life
  • Lost wages
  • Medical bills
  • Funeral expenses

In the wrongful death claim, the surviving spouse and “next of kin” are entitled to recover damages, which include:

  • Grief
  • Sorrow
  • Mental suffering

Who is next of kin in Illinois?

Next of kin is the deceased person’s close family members and is defined by the Illinois Probate Act (755 ILCS 5/). Typically, the surviving spouse and the deceased person’s children are considered next of kin.

More distant family members may also recover for wrongful death in circumstances where there are no close family members. If the deceased has no surviving spouse or children, then the deceased person’s grandchildren are considered the personal representative. When the deceased person has no grandchildren, then the personal representatives are considered the deceased person’s parents and siblings. Nieces and nephews are considered personal representatives when the deceased person has no surviving parents or siblings. If the deceased person has no nieces or nephews, then the grandparents are considered the personal representatives.

Illinois makes no distinction between “half-blood” and full-blooded” relatives. Additionally, the Wrongful Death Act considers both natural parents and children and adoptive parents and children as the next of kin, although this rule does not extend to foster parents.

How does next of kin work in Illinois?

Like other states, proceeds from a wrongful death case are distributed to the deceased’s spouse and closest family members. If the deceased has no spouse or close family members, it is distributed to more distant family members. The Illinois Probate Act (755 ILCS 5/9-1, et al.) controls the order of distribution, which is as follows:

  1. Spouse and children
  2. Grandchildren
  3. Parents
  4. Brothers and sisters
  5. Nieces and nephews
  6. Grandparents


Do I have a wrongful death claim?

If your loved one is killed due to an unintentional injury such as a car crash, medical malpractice, or a workplace accident, you should contact your attorney to determine whether you have a wrongful death case and to ensure you meet the two year statute of limitations. According to the CDC, the most common types of unintentional injury deaths in the United States are unintentional poisonings, falls, and motor vehicle accidents. Many of these tragedies are considered wrongful deaths that allow their loved ones to recover for their financial and emotional losses in court.

Motor vehicle accidents

One of the most common wrongful death actions arise out of motor vehicle traffic accidents. In 2019 alone, over 37,595 lives were lost on the road in the United States according to the CDC. If the person who caused the accident was working for their employer at the time, you can also file suit against their employer under the legal theory of vicarious liability. Common vehicular accidents where vicarious liability may also apply include:

  • semi-trucks and tractor trailers,
  • post office trucks,
  • delivery vans,
  • public transit,
  • busses, and,
  • in some scenarios, rideshare vehicles.


Falls and other premises liability accidents are also wrongful deaths if they were caused by the negligence of another. Many falls occur at the workplace, including at construction sites and warehouses. Other common places where falls are commonly fatal are at hospitals and nursing homes. If your loved one was killed at work or at a hospital or nursing home due to a fall, you should contact your attorney so they can investigate and determine whether you have a wrongful death claim.

Defective Products

Product defects are also a major cause of unintentional deaths. In these cases, referred to as product liability, the defendant product designers and manufacturers are strictly liable for any injuries or deaths caused by their defective products. Under this strict liability doctrine, plaintiffs do not have to prove that the defendant was negligent in their design or manufacture of the product; instead, they need only prove that the product was unreasonably dangerous at the time that it left the defendant’s facility.

Claimants can sue for product liability if:

  1. the product design was unreasonably dangerous;
  2. the product had a dangerous manufacturing defect; or
  3. the product had inadequate or inaccurate warnings.

Product liability claims are broad and can include injuries and deaths caused by defective automobile parts, defective batteries, defective wiring which create fire or explosion hazards, improperly mixed chemicals, children’s toys, unclear operating instructions for machinery, home improvement tools, and even undercooked food.


The Kryder Law Group, LLC Can Help You With Your Wrongful Death Claim

Experienced Chicago wrongful death attorneys can be an enormous benefit to you and your case. Our personal injury lawyers have litigated many Chicago wrongful death lawsuits and, thus, have the skill and competence to know how to successfully settle wrongful death cases. Do not hesitate to get in touch with our law firm. Our wrongful death attorneys are ready to assist you in your case and answer any questions you may have about wrongful death cases including how long it may take and what your case is worth. Call today for a free consultation to help get compensation for your grief, sorrow, and mental suffering.

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