When a loved one dies because of someone else’s negligence, Illinois law may allow two separate but related legal claims: a wrongful death action and a survival action. Families often ask about the difference between wrongful death vs survival action Illinois law provides, and whether both claims should be filed.
These claims arise under different statutes — the Illinois Wrongful Death Act (740 ILCS 180/) and the Illinois Survival Act (755 ILCS 5/27-6) — and they compensate different types of losses. In many cases, both claims are filed together.
Below is a detailed explanation of how these claims work and why understanding the distinction matters.
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 supported a personal injury claim had the person survived.
Purpose of a Wrongful Death Claim
The wrongful death claim compensates the deceased person’s surviving family members for the losses they suffer as a result of the death.
Who Files a Wrongful Death Claim?
The personal representative of the estate files the claim. For more about eligibility, visit:
Who Can File a Wrongful Death Lawsuit in Illinois.
Who Benefits?
Damages are awarded for the benefit of:
- The surviving spouse
- Children
- Parents or next of kin
Damages Available Under the Wrongful Death Act
- Loss of financial support
- Loss of companionship and society
- Grief and mental suffering
- Funeral and burial expenses
For a more detailed discussion of available compensation, see:
Wrongful Death Damages in Illinois.
The Illinois Survival Act (755 ILCS 5/27-6)
The Survival Act is different. It allows the deceased person’s own personal injury claim to “survive” their death.
Purpose of a Survival Action
A survival claim seeks compensation for losses the deceased suffered between the time of injury and death.
Who Files a Survival Action?
Like a wrongful death claim, a survival action is filed by the personal representative of the estate.
Who Benefits?
Survival action damages become part of the estate and are distributed according to the will or Illinois intestacy law.
Damages Available Under the Survival Act
- Medical expenses incurred before death
- Lost wages between injury and death
- Conscious pain and suffering experienced by the deceased
Key Differences Between Wrongful Death and Survival Actions
Who Is Compensated?
Wrongful death claims compensate surviving family members. Survival actions compensate the estate for injuries suffered by the deceased.
What Damages Are Covered?
Wrongful death damages focus on family losses. Survival damages focus on the decedent’s own injuries and expenses.
How Are Damages Distributed?
Wrongful death damages go directly to spouse and next of kin. Survival damages pass through the estate.
For additional explanation, you may also review:
Wrongful Death vs. Survival Action — Understanding the Difference.
How Both Claims Work Together
In many fatal injury cases, both claims are filed together in a single lawsuit with separate legal counts.
For example:
- A car accident victim survives for several weeks before passing away.
- A nursing home resident suffers untreated bedsores leading to infection and death.
- A medical malpractice patient undergoes painful treatment before succumbing to injuries.
In each scenario, both the family’s losses and the deceased person’s pre-death suffering may be compensable.
Common Case Types
Car Accident Deaths
Fatal crashes often allow both wrongful death and survival claims, especially when the victim survives the initial crash before dying from injuries.
Learn more: Peoria Car Accident Lawyer.
Medical Malpractice Deaths
When a patient dies due to medical error, both claims frequently apply because the patient often suffered before death.
Nursing Home Deaths
Nursing home neglect leading to death often involves both claims, particularly when the resident experienced prolonged suffering.
Learn more about nursing home actions:
Nursing Home Injury Lawyer page.
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.
Survival actions are generally subject to the same two-year personal injury statute of limitations, though specific circumstances may vary.
Failing to file within the applicable deadline may permanently bar recovery.
When Both Claims Apply
Both wrongful death and survival claims often apply when:
- The deceased experienced conscious pain before death
- Medical expenses were incurred prior to death
- Family members suffered financial and emotional loss
Filing both ensures that all available damages are pursued.
For an overview of wrongful death representation, visit:
Wrongful Death Attorney page.
Frequently Asked Questions
Can both wrongful death and survival claims be filed in the same case?
Yes. They are often filed together in a single lawsuit.
Who receives survival action damages?
They are distributed through the estate according to the will or Illinois intestacy laws.
What happens if the deceased died instantly?
A survival claim for pain and suffering may not apply, but a wrongful death claim may still proceed.
How long do I have to file these claims?
Generally, two years from the date of death under 740 ILCS 180/2.
Contact Parker & Parker Attorneys at Law
Understanding the distinction between wrongful death vs survival action Illinois law allows can help ensure your family pursues all available remedies.
Parker & Parker Attorneys at Law represents families throughout Peoria and Central Illinois in complex wrongful death and survival action cases.
Parker & Parker Attorneys at Law
300 NE Perry Ave
Peoria, IL 61603
Phone: 309-673-0069
Contact us today to discuss your legal options.
If you or a loved one has been injured in a car accident, the our Peoria personal injury team are ready to help you pursue the compensation you deserve.