Losing a loved one because of someone else’s negligence is devastating. In addition to grief, families are often left with financial uncertainty and unanswered questions. One of the most common legal questions we hear is: who can file a wrongful death lawsuit in Illinois?
Illinois law sets specific rules about who may bring a wrongful death claim, who benefits from it, and how the case must proceed. These claims are governed primarily by the Illinois Wrongful Death Act (740 ILCS 180/) and the Illinois Survival Act (755 ILCS 5/27-6).
Below is a detailed explanation of who has the legal authority to file, who receives compensation, and how the process works in Peoria and throughout Illinois.
The Illinois Wrongful Death Act (740 ILCS 180/)
The Illinois Wrongful Death Act allows a civil lawsuit when a person’s death is caused by a wrongful act, neglect, or default that would have entitled the person to file a personal injury claim had they survived.
The claim must be brought by the personal representative of the deceased person’s estate. Family members, including spouses, children, and parents, cannot file the lawsuit directly on their own.
This requirement ensures that the claim is brought through the estate in an organized legal process.
Who Qualifies as a Personal Representative?
The personal representative is typically:
- The executor named in the deceased person’s will; or
- An administrator appointed by the probate court if there is no will.
The appointment process is governed by the Illinois Probate Act. If no estate has been opened, the probate court must appoint a representative before a wrongful death case can proceed.
Who Receives the Compensation?
Although the personal representative files the case, they do not keep the money personally. Instead, damages are awarded for the benefit of the deceased person’s:
- Surviving spouse
- Children
- Parents (in certain circumstances)
- Other next of kin
The court determines how damages are distributed based on dependency and the closeness of the relationship.
To learn more about compensation categories, visit:
Wrongful Death Damages in Illinois.
Wrongful Death vs. Survival Action
Many families are unaware that Illinois law often allows two related claims:
Wrongful Death Claim (740 ILCS 180/)
Compensates family members for losses caused by the death, including:
- Loss of financial support
- Loss of companionship and society
- Grief and mental suffering
- Funeral expenses
Survival Action (755 ILCS 5/27-6)
Allows the deceased person’s own injury claim to “survive” their death. This includes:
- Medical bills before death
- Lost wages between injury and death
- Conscious pain and suffering
For a more detailed comparison, visit:
Wrongful Death vs. Survival Action in Illinois.
You may also find helpful information in our related blog:
Wrongful Death vs. Survival Action — Understanding the Difference.
Common Types of Wrongful Death Cases
Car Accidents
Fatal crashes caused by negligent drivers are among the most common wrongful death claims.
Learn more: Peoria Car Accident Lawyer.
Medical Malpractice
Surgical errors, misdiagnosis, or medication mistakes that lead to death may support a wrongful death claim.
Nursing Home Neglect
When nursing home residents die due to neglect or abuse, the Illinois Nursing Home Care Act (210 ILCS 45/) may provide additional legal protections.
Learn more: Peoria Nursing Home Injury Lawyer.
Workplace Accidents
Certain job-related fatalities may support both workers’ compensation claims and third-party wrongful death lawsuits.
Statute of Limitations (740 ILCS 180/2)
Under 740 ILCS 180/2, most wrongful death claims must be filed within two years of the date of death.
The Discovery Rule
In some cases, the statute of limitations may begin when the cause of death is discovered or reasonably should have been discovered.
Failure to file within the applicable time limit can permanently bar the claim.
The Role of Probate Court
Because the personal representative must file the claim, probate court involvement is often necessary.
The probate court:
- Appoints the personal representative
- Supervises estate administration
- Approves settlement distribution
Special Circumstances
Minor Children
If minor children are beneficiaries, the court may appoint a guardian ad litem to protect their interests in the case.
Unmarried Partners
Under the Illinois Wrongful Death Act, benefits typically flow to legally recognized family members. Unmarried partners generally do not have standing as beneficiaries, though they may in limited circumstances.
Frequently Asked Questions
Can I file a wrongful death lawsuit myself as a spouse?
Not directly. The personal representative of the estate must file the claim, though you may serve as that representative.
What if there is no will?
The probate court can appoint an administrator to serve as personal representative.
What is the difference between wrongful death and survival action?
Wrongful death compensates family members for their losses; survival actions compensate the estate for injuries suffered before death.
How long do I have to file?
Generally two years from the date of death, though exceptions may apply under the discovery rule.
Contact Parker & Parker Attorneys at Law
Understanding who can file a wrongful death lawsuit in Illinois is the first step toward protecting your family’s rights.
Parker & Parker Attorneys at Law assists families throughout Peoria and Central Illinois with wrongful death claims and related estate matters.
Learn more on our
Wrongful Death Attorney page.
Parker & Parker Attorneys at Law
300 NE Perry Ave
Peoria, IL 61603
Phone: 309-673-0069
Contact us today to discuss your situation and your legal options.