Skip to Content
Call or Text for a Free Consultation 309-673-0069
Call or Text for a FREE CONSULTATION 309-673-0069

Wrongful Death vs. Survival Action in Illinois

When someone dies because of another person’s wrongful act, Illinois law gives the family two separate legal claims: a wrongful death action and a survival action. Both claims arise from the same death, but they compensate different losses, benefit different people, and follow different rules.

Robert Parker handles both claims together in a single lawsuit. Parker & Parker handles wrongful death cases as a firm, with Robert Parker leading the legal work.

What is a wrongful death action?

A wrongful death action compensates the surviving family for what they lost when the person died.

The claim belongs to the widow and next of kin, the people who depended on the person who died. It covers:

  • Lost financial support. The money the person would have earned and contributed to the household over their remaining work life.
  • Lost services. Household work, childcare, home maintenance, and other contributions the person made at home.
  • Loss of society. Love, affection, companionship, guidance, and protection. Illinois courts recognize this as a real, compensable loss under Bullard v. Barnes, 102 Ill. 2d 505 (1984).
  • Grief and mental suffering. The emotional harm the family suffers because of the death.
  • Funeral and burial expenses. Usually handled through the estate or a separate family-expense claim.

The wrongful death claim looks forward from the moment of death. It asks: what does the family lose going forward because this person is gone?

What is a survival action?

A survival action preserves the claim the person who died would have had if they had lived.

The claim belongs to the estate, not directly to the family. It covers:

  • Pre-death pain and suffering. The physical and emotional distress the person experienced between the time of injury and the time of death.
  • Pre-death medical bills. Hospital and medical expenses incurred before death.
  • Pre-death lost earnings. Wages the person would have earned during the time between injury and death.
  • Pre-death disability and loss of normal life. To the extent the person experienced these before dying.
  • Punitive damages. When the law allows them, subject to statutory exclusions for medical malpractice, legal malpractice, and government defendants.

The survival action looks backward from the moment of death. It asks: what did the person personally suffer before they died?

How do the two claims differ?

Issue Wrongful Death Survival Action
Who benefits Surviving spouse and next of kin The estate (distributed by will or intestacy)
What it compensates Family’s loss going forward Decedent’s loss before death
Statute of limitations Two years from date of death (740 ILCS 180/2(d)) Limitations period for the underlying tort (usually two years from injury under 735 ILCS 5/13-202)
Who files Personal representative on behalf of next of kin Personal representative on behalf of the estate
How recovery is distributed Court allocates to next of kin under dependency hearing (740 ILCS 180/2(i)) Estate distributes under will or intestacy

Why file both claims together?

Because the same wrongful act caused both losses.

A car crash that kills someone instantly still generates both claims. The wrongful death claim compensates the family for losing the person. The survival claim compensates the estate for any pre-death pain, medical bills, or lost earnings, even if the person died quickly.

A nursing-home neglect case where the resident suffered for weeks before dying can produce a large survival claim for pre-death pain and suffering, in addition to the wrongful death claim for the family’s loss.

Robert Parker files both claims as Count I (Wrongful Death) and Count II (Survival Action) in a single complaint. Discovery, depositions, and trial preparation cover both. Settlement allocates between the two claims, and the court approves the allocation at a dependency hearing.

Who gets the money from each claim?

Wrongful death recovery flows through the estate to the surviving spouse and next of kin. The court holds a dependency hearing and allocates the recovery based on each family member’s relationship to the person who died and their financial dependency. Illinois intestacy law at 755 ILCS 5/2-1 helps identify the next of kin: surviving spouse and descendants first, then parents and siblings if no spouse or descendant, then grandparents and their descendants.

Survival action recovery flows to the estate and is distributed under the estate’s general administration. If the person who died left a will, the survival recovery follows the will. If there is no will, it follows Illinois intestacy.

This means the two recoveries can go to different people. If the person who died left a will naming a friend as beneficiary, the survival recovery goes to the friend. The wrongful death recovery still goes to the next of kin.

How long do I have to file?

Wrongful death: Two years from the date of death under 740 ILCS 180/2(d). Not the date of injury, the date of death. If someone is injured in a crash on January 1 and dies on February 15, the wrongful death clock starts on February 15.

Survival action: The limitations period for the underlying tort. For most personal-injury claims, that is two years from the date the cause of action accrued under 735 ILCS 5/13-202. For medical-malpractice claims, the two-year discovery and four-year repose framework at 735 ILCS 5/13-212 applies. For claims against local government, the one-year period at 745 ILCS 10/8-101(a) applies.

Both clocks must be tracked. Running of one does not preserve the other.

When does the survival claim add substantial value?

When the person who died was conscious for hours, days, or weeks between injury and death, and that suffering is documented in medical records and witness accounts.

Examples:

  • A pedestrian struck by a truck who survives in the ICU for ten days before dying. Medical records show pain, distress, sedation requirements, and physiological response. The survival claim for those ten days of conscious pain and suffering can be substantial.
  • A nursing-home resident who suffers pressure injuries, sepsis, and malnutrition over months before dying. The survival claim for prolonged pre-death suffering can exceed the wrongful death claim, particularly when the Nursing Home Care Act’s punitive-damages framework applies.

When the person died instantly or was unconscious from impact to death, the survival claim for pain and suffering is limited. The estate may still recover for pre-death medical expenses and pre-death lost earnings, but the conscious-pain category is constrained by the evidence.

How is pre-death pain and suffering documented?

Through:

  • Medical records. Notes from treating physicians, nurses, and EMS describing the person’s distress, pain complaints, sedation requirements, and physiological response (heart rate, blood pressure changes).
  • Witness accounts. Family members, friends, hospital staff, and EMS personnel who observed the person’s condition and heard their statements.
  • Treating-physician testimony. Doctors who treated the person can testify about the nature and extent of pain based on their observations and the medical record.

Illinois Pattern Jury Instruction 31.04.01 tells the jury that conscious pain and suffering must be proven by evidence, and that the duration and extent of the injury are relevant. Whether conscious pain and suffering has been proved is for the jury to determine.

Are punitive damages available?

Punitive damages may be available in either claim when the underlying law allows them. But Illinois law also contains express exclusions for:

  • Healing-art malpractice (medical malpractice) under 735 ILCS 5/2-1115.
  • Legal malpractice.
  • Government defendants in certain contexts.

Statutory analysis is case-specific. Robert Parker evaluates punitive-damages exposure at intake and structures the complaint accordingly.

Where are these cases filed?

Robert Parker files wrongful death and survival action cases in the trial courts of central Illinois:

  • Tenth Judicial Circuit: Peoria, Tazewell, Marshall, Putnam, and Stark Counties.
  • Eleventh Judicial Circuit: McLean, Woodford, Logan, Ford, and Livingston Counties.
  • Ninth Judicial Circuit: Knox, Fulton, Hancock, McDonough, and Warren Counties.

Each circuit has a probate division that handles personal-representative appointments and the settlement-approval and apportionment hearings at the end of the case.

The firm handles probate administration in-house: opening the estate, obtaining letters of office, filing the complaint with both counts, conducting discovery, preparing for trial or mediation, presenting the settlement-approval petition, and administering the distribution after court approval.

Frequently asked questions

Do I have to choose between the wrongful death claim and the survival claim?

No. Both claims run together. Robert Parker pleads both as separate counts in a single complaint and pursues both. Settlement at the end allocates between the two claims, and the court approves the allocation at the apportionment hearing.

Can the wrongful death and survival claims produce different beneficiaries?

Yes. When the person who died left a will naming beneficiaries different from the wrongful-death next of kin, the survival recovery follows the will and the wrongful death recovery follows the wrongful-death apportionment. The two recoveries can go to different people.

What if the person who died had no will?

Then both recoveries are distributed under Illinois intestacy law at 755 ILCS 5/2-1. The wrongful death recovery is allocated by the court to the next of kin under the dependency hearing. The survival recovery is distributed by the estate under intestacy.

What if the person who died was unconscious the entire time?

The survival claim for conscious pain and suffering is limited. The estate may still recover for pre-death medical expenses and pre-death lost earnings, but the pain-and-suffering category is constrained by the evidence of consciousness.

How are funeral and burial expenses handled?

Funeral and burial expenses are usually handled through the estate, a separate family-expense claim under the Family Expense Act, or an independent estate claim. They are not ordinarily classified as survival-action pain-and-suffering damages.

Are wrongful death and survival recoveries taxable?

Wrongful death and survival recoveries have different federal-tax treatment in some respects. Detailed tax analysis is part of settlement planning, particularly for structured settlements involving minor beneficiaries. Robert Parker works with tax counsel when necessary.

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.

Office: 300 NE Perry Avenue, Peoria, IL 61603
Phone: 309-673-0069

Locations Map (KML)