Who Can File a Wrongful Death Lawsuit in Illinois
In Illinois, only the personal representative of the deceased person’s estate can file a wrongful death lawsuit. That means a surviving spouse, child, or parent cannot file directly in their own name, even though they are the people who will receive any money recovered.
The personal representative is either the executor named in the deceased person’s will or an administrator appointed by the probate court. If the wrongful death claim is the estate’s only asset, the court can appoint a special administrator just to handle the lawsuit.
Recovery goes to the surviving spouse and next of kin. The court decides how to divide wrongful death damages based on each family member’s relationship to and financial dependence on the person who died.
Illinois law gives you two years from the date of death to file, with some exceptions. Cases involving government defendants, medical malpractice, or violent intentional conduct may have different deadlines.
Why the personal representative files, not the family
Illinois created the wrongful death cause of action by statute in 740 ILCS 180/2(a). The legislature assigned the right to sue to the personal representative, not to individual family members.
The next of kin, spouse, children, parents, are the real parties in interest. They are the ones who suffered the loss, and they are the ones who receive the recovery. But they have no legal standing to file the lawsuit themselves.
A wrongful death complaint signed by a surviving spouse or parent instead of the personal representative is procedurally defective. The defendant can move to dismiss, and the court will grant the motion unless the plaintiff fixes the problem by opening probate and substituting the personal representative as the named plaintiff.
How the personal representative is appointed
If there is a will
If the deceased person left a will naming an executor, that person petitions the probate division of the circuit court to be appointed. The court reviews the will, confirms it was properly executed, and issues letters testamentary. The executor then has legal authority to file the wrongful death lawsuit on behalf of the estate.
If there is no will
If there is no will, the probate court appoints an administrator. Illinois law gives priority to the surviving spouse, then to the deceased person’s children, then to parents, then to siblings. The person seeking appointment files a petition, and the court issues letters of administration.
Special administrators for wrongful death claims
When the wrongful death claim is the estate’s only asset and no one has opened a probate estate, the court can appoint a special administrator under 740 ILCS 180/2.1. The special administrator has limited authority, just enough to pursue or defend the wrongful death action. This avoids the cost and delay of opening a full probate estate when there are no other assets to administer.
What Parker & Parker does at intake
At intake, we ask: Was there a will? Who is the next of kin? Is there a surviving spouse with interests that might conflict with the children’s interests? Are any of the next of kin minors?
If no probate estate has been opened, we open one. We prepare the petition, file it in the probate division of the appropriate county circuit court, and obtain letters of office. Until the letters issue, we cannot file the wrongful death lawsuit.
Who receives the money
Recovery under the Wrongful Death Act goes to the surviving spouse and next of kin, distributed according to Illinois intestacy rules and the court’s apportionment order.
The next-of-kin hierarchy
Illinois intestacy law at 755 ILCS 5/2-1 establishes the kinship order:
- Surviving spouse and descendants (children, grandchildren if a child predeceased)
- If no spouse or descendants: parents and siblings (and their descendants by representation)
- If no parents or siblings: grandparents and their descendants
- If none of the above: the next generation of ancestors
In most wrongful death cases, recovery is shared between a surviving spouse and children, or among parents and siblings if the deceased person left no spouse or children.
How the court divides the recovery
The Wrongful Death Act does not use a simple intestacy split. Instead, the court allocates recovery based on each beneficiary’s degree of dependency on the deceased person.
Under 740 ILCS 180/2(i), the trial judge holds a hearing to determine dependency. The court considers:
- The deceased person’s relationship to each next of kin
- Each beneficiary’s financial dependence on the deceased
- The deceased person’s contributions to the household
- The age and health of each beneficiary
- Any other factor bearing on pecuniary loss
The court then signs an order allocating the recovery among the beneficiaries. The personal representative distributes the money according to that order.
When beneficiaries include minor children
If any next of kin are minors, additional court oversight applies. Settlements involving minor beneficiaries may require:
- A guardian ad litem report
- Court approval of the minor’s share
- A structured settlement or custodial account to protect the minor’s interest
Under 740 ILCS 180/2.1, if proceeds above the statutory threshold go to a minor after a special-administrator recovery, the balance is administered under probate-division supervision.
Conflicting interests among beneficiaries
Sometimes the next of kin have conflicting interests. For example, a surviving spouse may want the largest share, but the deceased person’s minor children from a prior marriage have their own substantial pecuniary-loss claim.
When conflicts exist, the court may appoint separate counsel for the conflicting parties or appoint a guardian ad litem to represent the minors’ interests. We flag conflicts at intake and structure representation to address them.
How long you have to file
The two-year rule
The Wrongful Death Act gives you two years from the date of death to file under 740 ILCS 180/2(d). The clock starts the day the person died, not the day they were injured.
If someone is hospitalized for ten days after a crash and then dies, the two-year deadline runs from the date of death, not the date of the crash.
Exceptions and special rules
Violent intentional conduct. Under 740 ILCS 180/2(e), you may have up to five years after death if the death resulted from violent intentional conduct, or up to one year after final disposition of certain criminal cases. This extension applies only against the individual who allegedly committed the violent act or was charged with the crime, not against other defendants.
Medical malpractice. When the underlying claim is medical negligence, you must also satisfy the timing rules in 735 ILCS 5/13-212. The wrongful death deadline is still two years from death, but the underlying negligence theory must meet the medical-malpractice statute’s discovery and repose framework. Medical-malpractice wrongful death also requires the attorney affidavit and reviewing-health-professional report under 735 ILCS 5/2-622.
Government defendants. The Local Governmental and Governmental Employees Tort Immunity Act at 745 ILCS 10/8-101(a) sets a one-year limitations period for many suits against local public entities and their employees. Patient-care claims against local public entities have a separate timing rule in subsection (b). State-defendant cases may belong in the Illinois Court of Claims, with separate filing requirements.
Product liability and aviation. Some defective-product and aviation cases bring separate repose, preemption, or forum questions. Those rules do not replace the Wrongful Death Act deadline, they add another timing layer.
Survival Act count. The Wrongful Death count uses the date of death for limitations. The Survival Act count, which recovers the deceased person’s own pain and suffering between injury and death, uses the date of injury. Both counts run together in a single complaint, each with its own clock.
We do not rely on tolling as a substitute for prompt action. We open probate or seek a special-administrator appointment and file on time.
What a wrongful death case looks like from start to finish
Step 1: Probate appointment
We open a probate estate, have the executor or administrator appointed, and obtain letters of office. Until the letters issue, we cannot file the wrongful death lawsuit.
Step 2: Investigation and demand
We gather accident reports, photographs, surveillance video, medical records, the autopsy report, employment records for the lost-earnings claim, and witness statements. Preservation letters go out within days of intake for any perishable evidence.
If the case will settle before filing, we send a demand package to the at-fault party’s insurer once we can defensibly quantify medical and economic damages.
Step 3: Filing and service
We file the complaint in the appropriate circuit court. We check personal jurisdiction, venue, and service rules before filing. Venue is usually tied to where the defendant resides or where the cause of action arose. Federal diversity cases use federal pleading and service rules.
Step 4: Discovery
We disclose our experts under Illinois Supreme Court Rule 213(f): accident reconstruction, biomechanics, economist, life-care planner if pre-death survival was prolonged, medical experts on cause of death, and vocational economist on loss of services and pecuniary loss.
The defense takes depositions, requests employment files and tax returns, and asks the family to testify about the deceased person’s relationships and contributions.
Step 5: Negotiation, mediation, or trial
Most wrongful death cases settle before trial. Mediation is increasingly common in the Tenth and Eleventh Judicial Circuits.
Cases that go to trial are tried under the Illinois Pattern Jury Instructions for Civil Cases, including the IPI 31.00 series for wrongful death damages and IPI 45.04 verdict forms where Wrongful Death and Survival Act counts are tried together.
Step 6: Court approval and distribution
Wrongful death settlements require court approval. The personal representative petitions for approval and apportionment. The court holds a hearing, reviews evidence on each beneficiary’s relationship and dependency, and signs an order allocating the recovery.
The estate then distributes the money according to the order. The Survival Act recovery, which compensates the deceased person’s own pain and suffering, goes through the estate’s general administration and is distributed according to the will or intestacy law, not the Wrongful Death Act apportionment.
Where these cases are filed in central Illinois
Wrongful death cases we handle are filed in the trial courts of:
- Tenth Judicial Circuit: Peoria, Tazewell, Marshall, Putnam, Stark Counties
- Eleventh Judicial Circuit: McLean, Woodford, Logan, Ford, Livingston Counties
- Ninth Judicial Circuit: Knox, Fulton, Hancock, McDonough, Warren Counties
Each circuit has a probate division that handles personal-representative appointments and settlement-approval hearings. We handle the probate-estate-opening step in-house and coordinate probate with the underlying wrongful death litigation.
Frequently asked questions
Who is allowed to file a wrongful death lawsuit in Illinois?
Only the personal representative of the deceased person’s estate. That is either the executor named in a will or the administrator (or special administrator) appointed by the probate court. Surviving spouses, children, and parents do not file directly. Recovery flows through the estate to the next of kin under the apportionment formula in the Wrongful Death Act.
How long do I have to file a wrongful death case in Illinois?
Two years from the date of death under 740 ILCS 180/2(d), unless a specific exception applies. Violent intentional conduct may extend the deadline against the actor under 740 ILCS 180/2(e). Medical-malpractice deaths must account for 735 ILCS 5/13-212. Local-government defendants often require filing within one year under 745 ILCS 10/8-101(a), with a separate patient-care rule in subsection (b).
What if there is no will?
The probate court appoints an administrator, typically the surviving spouse, an adult child, or another close relative. If no obvious candidate is available or there is family disagreement, the court can appoint a neutral administrator. For time-pressure cases, the court can appoint a special administrator with limited authority to pursue the wrongful death claim.
Who gets the wrongful death money?
The next of kin, typically the surviving spouse and children first, then parents and siblings if there is no spouse or descendant. The court divides the money under 740 ILCS 180/2(b) after holding the dependency hearing required by 740 ILCS 180/2(i).
What if some of the next of kin are minor children?
Additional probate oversight applies. Minor beneficiaries’ shares are reviewed by the court. Settlements may require a guardian-ad-litem report, a structured settlement option, or a custodial account.
Does an Illinois wrongful death case require court approval to settle?
Yes. The personal representative cannot distribute a wrongful death settlement without court approval and an allocation order. The court reviews the proposed settlement, holds an apportionment hearing, and signs an order before disbursement.
Does it cost anything to start a wrongful death case?
No. We work on contingency: no fee unless we recover. Probate filing fees, expert witnesses, accident reconstruction, deposition transcripts, and other litigation costs are advanced by the firm and reimbursed only out of the recovery, never from the family’s pocket up front.
Speak with a Peoria wrongful death attorney
Parker & Parker handles wrongful death cases as a firm, with Robert Parker leading the legal work. Initial consultation is free, and the firm works on contingency: no fee unless we recover.
Parker & Parker Attorneys at Law
300 NE Perry Avenue
Peoria, IL 61603
(309) 673-0069