Wrongful Death of a Child in Illinois: A Family’s Legal Rights

Last Updated: October 29, 2026

A wrongful-death action is brought by the personal representatives under 740 ILCS 180/2(a). The amount recovered is for the exclusive benefit of the surviving spouse and next of kin, except as the section otherwise provides. The jury may award fair and just compensation with reference to the pecuniary injuries, including grief, sorrow, and mental suffering.

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Wrongful Death of a Child in Illinois: A Family’s Legal Rights

Wrongful Death of a Child in Illinois: A Family’s Legal Rights

The wrongful death action is brought by and in the names of the personal representatives. It is not brought by a parent or a guardian as such. Subsection (f) treats an adopting parent and an adopted child as a natural parent and a natural child for this section.

How Child Wrongful Death Claims Work in Illinois

Subsection (a) measures the award as fair and just compensation with reference to the pecuniary injuries resulting from the death, including grief, sorrow, and mental suffering, to the surviving spouse and next of kin. Punitive damages are included when applicable. They are not available in healing-art or legal malpractice, or against the State or a unit of local government or their employees in an official capacity. Subsection (b) distributes the recovery by each person’s percentage of dependency. The share is not an automatic equal division between parents.

Non-Economic Damages: The Heart of the Claim

Subsection (a) does not state a dollar cap on that fair-and-just compensation. Grief, sorrow, and mental suffering are included in the pecuniary injuries. They are not three separate capped awards. Illinois pattern instructions also treat loss of the child’s society and companionship as part of the pecuniary injury to lineal next of kin when the evidence supports it.

Pecuniary loss can also include money, benefits, goods, or services the child customarily contributed or was likely to contribute when proved by the evidence. Courts do not apply an automatic lifetime-earnings formula for a minor; any economic component must be supported by the facts of the case.

Common Causes of Child Wrongful Death

Children are killed by negligent drivers in pedestrian accidents near schools and in residential neighborhoods, in car accidents where another driver caused the crash, in drowning incidents at pools or waterways with inadequate supervision or fencing, and in defective product incidents involving toys, furniture, or vehicles. Each scenario involves different defendants and different legal theories, but the wrongful death framework applies to all of them.

A fatal crash involving a child passenger or a child pedestrian is one setting for the same section 180/2 action. The section does not rank causes or assign a share of cases to any roadway.

The Survival Action Component

Alongside the wrongful death claim, the personal representative may bring a survival action under the Probate Act for damages that accrued to the child before death. That claim compensates the estate for proved pre-death injuries, such as medical expenses and conscious pain and suffering when supported by the evidence. Brief survival after the negligent act does not automatically prove conscious pain or a particular damage amount.

Section 180/2 still measures the wrongful death claim by the pecuniary injuries to the surviving spouse and next of kin, not by the child’s own pre-death experience.

Holding the Right Parties Accountable

Subsection (h) first applies the decedent’s contributory fault under section 2-1116. It then measures each beneficiary’s fault. Fault of more than 50 percent bars that beneficiary. Fault that is not more than 50 percent reduces that beneficiary’s damages in proportion, and the reduction is not payable by a defendant. A beneficiary’s contributory negligence is not a complete defense to the action under subsection (g).

For the broader lawsuit framework, see our guide to filing a wrongful death lawsuit in Illinois, including who can sue, deadlines, damages, and how the case moves through court.

Frequently Asked Questions

Can parents file a wrongful death lawsuit for a child in Illinois?

The personal representatives bring the action. The beneficiaries are the surviving spouse and next of kin, except as the section otherwise provides. Each share follows that person’s percentage of dependency.

What damages are available in a child wrongful death case in Illinois?

The wrongful death measure includes fair and just compensation for pecuniary injuries to the next of kin, including grief, sorrow, and mental suffering and, when proved, loss of the child’s society and companionship and evidence-based past or future contributions. Funeral and burial costs and certain medical expenses are not measured as ordinary next-of-kin pecuniary loss under section 180/2; they may be pursued through other applicable routes, such as a survival claim for pre-death medical bills or an independent estate action for expenses incurred by the estate, subject to who paid, who is responsible, and rules against double recovery.

How long do parents have to file a wrongful death claim for a child in Illinois?

Except as subsection (e) provides, the action is commenced within two years after the death. Subsection (e) allows an action within five years after the death when the death results from violent intentional conduct, or within one year after the final disposition of the criminal case when the defendant is charged with a listed offense. These extensions apply only against the individual who allegedly committed the violent intentional act or was charged with a listed crime; they do not extend the deadline against any other person or entity. Subsection (f) lets a beneficiary who was under 18 when the cause accrued cause the action to be brought within two years after attaining 18. The deceased child’s age is not that extension.

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