Wrongful Death vs. Survival Action in Illinois: Understanding the Difference
Sat 14 Feb, 2026 / by Robert Parker / Wrongful Death
Last Updated: October 25, 2026
740 ILCS 180/1 creates an action when a death is caused by a wrongful act, neglect, or default that would have let the injured person sue if death had not ensued. 740 ILCS 180/2 has that action brought by the personal representatives for the surviving spouse and next of kin. 755 ILCS 5/27-6 lets an action for an injury to the person survive, with the exceptions in that section. The two filing periods are not the same.
When a family loses a loved one because of someone else’s negligence, the emotional impact is overwhelming. In addition to grief, families often face medical bills, funeral expenses, and the sudden loss of income or companionship.
Under Illinois law, there are typically two separate but related legal claims that may arise after a fatal injury: a wrongful death claim and a survival action. Understanding the difference between wrongful death vs survival action Illinois claims is important for families seeking accountability.
Although they often proceed together, they compensate different harms and are governed by different statutes.
What Is a Wrongful Death Claim in Illinois?
A wrongful death claim arises under 740 ILCS 180/1. Whenever the death of a person is caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would, if death had not ensued, have entitled the injured person to maintain an action and recover damages, the person who would have been liable if death had not ensued is liable to an action for damages, notwithstanding the death. The section includes punitive damages when applicable. Punitive damages are not available in an action for healing-art malpractice or legal malpractice, or against the State or a unit of local government or an employee of the State or of a unit of local government in an official capacity. The source note is P.A. 103-514, effective August 11, 2023. The changes made by that amendatory Act of the 103rd General Assembly apply to actions filed on and after its effective date.
In simple terms, a wrongful death claim focuses on the losses suffered by surviving family members as a result of the death.
Who Files a Wrongful Death Claim?
Section 180/2(a) says every such action shall be brought by and in the names of the personal representatives of the deceased person. Except as the section later provides, the amount recovered is for the exclusive benefit of the surviving spouse and next of kin.
The personal representative is typically:
- The executor named in a will, or
- An administrator appointed by the court if there is no will
Who Receives the Compensation?
Section 180/2(b) says the court distributes the amount recovered to each of the surviving spouse and next of kin in the proportion that the percentage of dependency of each person bears to the sum of those percentages. If the deceased person left no surviving spouse or next of kin entitled to recovery, subsection (c) measures the recovery as the total reasonable value of the hospital or hospitalization services, the medical or surgical services, the funeral expenses, and the costs and expenses of administering the estate and prosecuting or compromising the action, including attorney fees. Within that combined total, the hospital or hospitalization class does not exceed $450 and the medical or surgical class does not exceed $450. The combined total does not exceed $900 plus a reasonable attorney fee.
What Damages Are Available in a Wrongful Death Claim?
Section 180/2(a) lets the jury give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from the death, including damages for grief, sorrow, and mental suffering, and punitive damages when applicable. The same punitive-damage limits stated above apply. Loss of financial support, loss of companionship and society, and loss of guidance for children are ways those pecuniary injuries are often described. They are not a separate list in section 2(a). Funeral expenses appear in the limited measure in subsection (c), not in the general measure in subsection (a).
The focus is on how the death affected surviving loved ones.
What Is a Survival Action in Illinois?
755 ILCS 5/27-6 is titled “Actions which survive.” In addition to the actions which survive by the common law, it lists actions to recover damages for an injury to the person, except slander and libel, including punitive damages when applicable. It also lists replevin, injury to real or personal property, detention or conversion of personal property, actions against officers for misfeasance, malfeasance, or nonfeasance, fraud or deceit, and an action under section 6-21 of the Liquor Control Act of 1934. Punitive damages are not available in an action for healing-art malpractice or legal malpractice, or against the State or a unit of local government or an employee in an official capacity. The source note is P.A. 103-514, effective August 11, 2023.
The section lets the deceased person’s own injury action survive. It is not the wrongful-death measure for the family’s loss.
In other words, it is the injury claim the person could have filed had they lived.
What Damages Are Available in a Survival Action?
Section 27-6 does not set out a separate schedule of medical bills, wages, or pain. The surviving injury action may include:
- Medical expenses incurred before death
- Lost wages between injury and death
- Conscious pain and suffering
- Disability or disfigurement before death
These damages become part of the estate and are distributed according to the will or Illinois intestacy laws.
Key Differences: Wrongful Death vs Survival Action Illinois
| Wrongful Death Claim | Survival Action |
|---|---|
| Compensates family members | Compensates the deceased person’s estate |
| Based on losses caused by death | Based on injuries before death |
| Damages go to spouse and next of kin | Damages go through the estate |
| Includes loss of society and grief | Includes medical bills and pain before death |
Although distinct, these claims frequently proceed together in one lawsuit.
How the Two Claims Often Run in Parallel
In many fatal cases, both claims apply. For example:
- A car injured person survives for several weeks in the hospital before passing away.
- A nursing home resident suffers untreated infection and experiences pain before death.
- A patient undergoes negligent surgery and deteriorates over time.
In these situations:
- The survival action covers medical bills and conscious suffering before death.
- The wrongful death claim covers the family’s losses after death.
Common Scenarios Where Both Claims Apply
Fatal Car Accidents
Motor vehicle collisions are one of the most common sources of wrongful death and survival claims.
If the deceased initially survived the crash but later passed away, both claims may be available.
Learn more about crash-related cases on our
Peoria car accident lawyer page.
Nursing Home Neglect
In cases involving bedsores, dehydration, or untreated infections, residents may suffer before passing away.
These cases frequently involve both wrongful death and survival components.
For more information, visit our
Nursing Home Injury resource page.
Medical Malpractice
Surgical errors, misdiagnosis, and delayed treatment can lead to extended suffering before death.
The Filing Periods Are Not the Same
740 ILCS 180/2(d) says that, except as subsection (e) provides, every wrongful-death action shall be commenced within 2 years after the death. An action against a defendant arising from a crime committed by the defendant in whose name an escrow account was established under the Criminal Victims’ Escrow Account Act shall be commenced within 2 years after the account was established. Subsection (e) allows an action within 5 years after the death if the death is the result of violent intentional conduct, or within one year after the final disposition of the criminal case if the defendant is charged with a homicide offense listed in that subsection. The extension runs only against that individual, not against any other person or entity. Subsection (f) says a person entitled to recover who was under 18 when the cause of action accrued may cause the action to be brought within 2 years after turning 18.
Section 27-6 does not state a filing period for the surviving injury action. The wrongful-death period is not that period.
Who Qualifies as a Personal Representative?
The personal representative is the legal individual authorized to act on behalf of the estate.
If the deceased had a will, the executor named in the document typically serves. If no will exists, the probate court appoints an administrator.
Section 180/2(a) requires the wrongful-death action to be brought by and in the names of the personal representatives. Section 27-6 does not name the person who files the surviving injury action.
Why Understanding the Difference Matters
Failing to properly plead both claims could limit available damages.
Families sometimes assume “wrongful death” covers everything. However, without a survival action, damages for pre-death suffering or medical expenses may not be fully addressed.
These cases are complex and require careful legal strategy.
For a broader overview of serious injury and fatal claims, visit our
Personal Injury resource page.
Frequently Asked Questions
Can both wrongful death and survival actions be filed in the same case?
Yes. They are often combined in one lawsuit, with separate counts for each claim.
Who receives survival action damages?
They are paid to the estate and distributed according to the will or Illinois intestacy law.
Does grief compensation exist in Illinois wrongful death cases?
Section 180/2(a) includes damages for grief, sorrow, and mental suffering in the fair and just compensation for the pecuniary injuries resulting from the death, to the surviving spouse and next of kin. The source note on that section is P.A. 103-514, effective August 11, 2023.
What if the deceased died instantly?
If death was immediate, a survival claim for pain and suffering may not apply, but a wrongful death claim may still proceed.
Compassionate Guidance for Peoria Families
Losing a loved one is devastating. Understanding the legal framework of wrongful death vs survival action Illinois claims can help families pursue accountability and financial stability.
If your family has suffered a fatal loss due to negligence, Parker & Parker Attorneys at Law can explain your options and guide you through the process.
Parker & Parker Attorneys at Law
300 NE Perry Ave
Peoria, IL 61603
Phone: 309-673-0069
Contact us today for a free consultation.
Need a lawyer? This article is part of our Peoria Wrongful Death Lawyer practice area. Call Parker & Parker at 309-673-0069 for a free consultation.