When we ask the question, “who can file a wrongful death lawsuit?” what we are really asking is who can recover damages and get compensation for the wrongful death.
Under the Illinois Wrongful Death Act (740 ILCS 180/0.01, et al.), wrongful death lawsuits must be brought by the “personal representatives” of the deceased person. The persons who may recover for wrongful death may be different from the personal representative.
Typically, the surviving spouse and “next of kin” are entitled to recover damages under the Wrongful Death Act, including fair and just compensation for pecuniary injuries such as grief, sorrow, and mental suffering. (740 ILSC 180/2).
Who else can recover damages?
The deceased person’s estate may also recover for the deceased person’s pain and suffering, lost wages, related medical bills, and funeral expenses under the Illinois Survival Act. (755 ILCS 5/27-6).
Close family members such as spouses, children, and, in some cases, parents may also file their own separate lawsuits to recover for loss of consortium associated with loss of love and companionship, loss of care and guidance, and loss of household services.
Who is considered next of kin?
In a wrongful death lawsuit 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.
Distant Family Members
More distant family members may also recover from a wrongful death claim. When there is 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 in wrongful death claims 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.
Half-Blooded Relatives and Adoptive Family Members
Illinois makes no distinction between “half-blood” and “full-blooded” relatives.
Additionally, the Illinois Wrongful Death Act considers both natural parents and children and adoptive parents and children as the next of kin.
This rule, however, does not extend to foster parents.
Fiancés and Non-Family Members
Non-family members cannot typically file a wrongful death claim. Similarly, since a fiancé or fiancée is not a surviving spouse, they typically are not considered personal representatives of the deceased who can recover under the Wrongful Death Act.
However, a court may appoint a non-family member as a “special administrator” in certain circumstances. Non-family members may also be able to recover certain damages under the Survival Act (755 ILCS 5/27-6) if they are beneficiaries of the deceased’s estate. Those damages include lost wages, medical bills, pain and suffering of the deceased, and loss of a normal life.
Who can sue on behalf of a deceased person?
Wrongful death claims may be brought by the “personal representative” of the deceased person under the Wrongful Death Act. If the deceased has a valid will that names an executor, then the executor is considered the personal representative.
If the deceased person does not have a will or their will is considered invalid, then the court appoints an administrator that is typically nominated by an interested party.
Appointing an Administrator
The process of appointing the administrator is governed by the Illinois Probate Act and usually requires filing a petition for letters of administration. (755 ILCS 5/9-1, et al).
While a court may accept any person nominated as an administrator, the Probate Act gives preference to family members and nominees of family members in the following order:
Can a non-family member recover for wrongful death?
Unless they are named beneficiaries in a will, non-family members cannot typically recover in a wrongful death claim as damages are usually distributed to spouses and close family members.
However, under the Illinois Probate Act and the Illinois Wrongful Death Act, non-family members may file a wrongful death lawsuit if they are named as an executor in the deceased person’s will or, when there is no will, if they are appointed as an administrator in Illinois Probate Court. To be appointed an administrator, an interested party (usually a family member of the deceased), must file a petition for letters of administration with the court.
The court may accept any person, including non-family members, nominated by an interested party as administrator.
The Probate Act gives preference to family members and nominees of family members in the following order:
Similarly, fiancés may file a wrongful death lawsuit if they are named as an executor in the deceased person’s will when they are appointed as an administrator in the Illinois Probate Court when there is no will.
However, since fiancés are not considered surviving spouses of the deceased under Illinois law, they are not given preference unless nominated by a close family member of the deceased.
They also cannot typically recover damages in a wrongful death claim unless they are named as a beneficiary in the deceased’s will.
You should contact your wrongful death attorney to determine whether you are entitled to damages if your loved one is wrongfully killed.
What counts as wrongful death?
A wrongful death suit may be brought whenever a person or entity was negligent and caused the death of another person.
Wrongful death cases may include deaths caused by:
medical malpractice such as surgical or medical errors,
construction or workplace accidents,
train and airplane crashes,
exposure to toxic chemicals.
Workplace deaths also oftentimes qualify as wrongful deaths and may include trucking accidents, falls, construction accidents, electrocutions, chemical exposure, and equipment malfunctions.
If the person or entity was reckless, punitive damages may be appropriate to punish the defendant and deter them from bad behavior in the future.
How to you prove wrongful death?
To prove wrongful death, the personal representatives (the plaintiffs) must show that 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 typically include grief, sorrow, and mental suffering under the Wrongful Death Act as well as the deceased person’s pain and suffering associated with the injury and death, lost wages, and associated medical bills under the Survival Act.
Close family members may also file separate claims for loss of consortium to recover for loss of care, loss of love and companionship, and loss of services from the deceased person.
Each wrongful death case is unique, and you should speak with your attorney to evaluate your potential wrongful death lawsuit.
How do I file a wrongful death action?
Wrongful death actions are filed by the deceased person’s representatives. Before filing a wrongful death claim, the proposed personal representatives must typically open an estate in Illinois Probate Court. If the deceased had a will, the court must review and admit the will before they appoint the will’s executor as personal representative.
If the deceased does not have a will, the court will accept petitions for letters of administration designating an administrator or administrators to oversee the estate. The court then evaluates the petitions and appoints an administrator.
Once the executor (for wills) or administrator (when there is no will) is appointed by the court as a personal representative, the personal representative then files a wrongful death claim in the Illinois Circuit Court.
Automobile accidents which are one of the most common types of wrongful death accidents.
Pedestrian and bicycle crashes, especially when they involve getting struck by an automobile.
Workplace accidents such as falls, toxic chemical exposure, trucking and driving accidents, and construction accidents may constitute wrongful deaths.
Defective products that caused a loved one’s death due to a dangerous product design, a manufacturing defect, or inadequate warnings.
Transportation accidents such as train crashes, airplane crashes, and bus accidents.
Medical malpractice that causes a loved one’s death, such as medical errors during surgery, falls during a transfer after surgery, failure to sanitize equipment in a hospital, accidental overdoses, and failure to make a proper diagnosis.
Toxic chemical exposure and poisoning, including asbestos, lead, mercury, carbon monoxide and other carcinogenic compounds and heavy metals.
What can I recover in a wrongful death action?
Illinois recognizes multiple causes of action when a loved one dies due to someone else’s negligence.
First, the family and spouse of the deceased can file a direct suit for a wrongful death claim where they can recover damages for:
Second, the beneficiaries (family members or anybody named in the deceased will) of the estate of the deceased can file a survival action and recover any damages the deceased could have recovered if they were still alive.
These damages include:
Pain and suffering
Loss of a normal life
Finally, a spouse may also file a wrongful death claim for loss of consortium damages, which include
Loss of love and affection
Loss of services
In some instances where the defendant’s negligence is particularly outrageous, you may be entitled to petition the court for punitive damages to punish and deter the defendant from further bad conduct.
Get Help From The Kryder Law Group, LLC
Filing these wrongful death lawsuits can be burdensome and time consuming. It may also be difficult to identify the correct defendants to sue in a wrongful death claim, especially when there are multiple bad actors that caused your loved one’s death.
You should consult with your experienced Chicago wrongful death attorney to determine the best course of action before moving forward in a wrongful death case. The lawyers at The Kryder Law Group, LLC have experience in wrongful death lawsuits and can guide you through every step of the process. Contact us today for a free consultation.