At Shuman Legal, we understand how difficult it can be to navigate legal processes when you are grieving. As a result, we curated an updated guide that cuts through the legal confusion around who can actually file a claim, who gets compensated, and how much time you have.
This post reflects Illinois law as of 2026.
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The Basics: What Illinois Wrongful Death Law Actually Does
A wrongful death claim is justified when the death of a person is due to another person’s negligence or wrongful act. The law allows this claim to be brought up against this person’s wrongful act as if the person had survived and ensures that compensation for damages goes to the family of the deceased. Damages do not just include financial loss, but also mental suffering and loss of companionship brought on by the death.
- The Survival Act
The Illinois Survival Act is another type of claim related to the wrongful death act that gives you the right to recover what the deceased could have sued for themselves. This includes medical bills, lost wages, and pain that was brought on before death.
- Key Differences
So why do these both matter? While they are both laws to recover compensation when a loved one passes in these situations, there are some important distinctions to know. With a wrongful death claim, damages are awarded to the family or next of kin, meaning the closest living relative; while survival action money goes to the deceased’s estate (everything they owned, such as bank accounts or property), then, upon probate, the money will be distributed.
Who Files the Claim
Wrongful death claims are typically filed by one person who is a personal representative of the deceased’s estate, which is someone who is legally authorized to file. Here’s what that means:
- If there is a will, there should be an executor named within the will who becomes the personal representative, upon court approval.
- Keep in mind that in Illinois, if the named executor fails to file within 30 days of notification about the death, any interested heir, creditor, or beneficiary can petition the court to start the process.
- If there’s no will, the probate court appoints someone as an administrator. Illinois courts follow a strict priority list in descending order:
- Surviving Spouse
- Adult Children
- Grandchildren
- Parents
- Siblings
- The executor/representative must be at least 18 years old, a resident within the United States, not a convicted felon, and be deemed qualified by the court.
- Multiple representatives can join together if needed; in some cases, the court determines that multiple family members being involved to share responsibility is appropriate.
- If there is no family available or qualified, the public administrator of the county is typically the final safety net.
- The practical steps for opening an estate and picking a representative, and why getting an attorney involved early makes this a lot smoother:
- Step 1: File the Petition
File a “Petition for Probate of Will and for Letters of Testamentary”, if a will exists. The person who files must be the named executor in the will and file within 30 days of knowledge of the death.
If a will does not exist, then you may file a “Petition for Letter of Administration” for the probate court. Both of these need to be filed in the same county where the lost loved one lived.
- Step 2: Petition Approval
Once your petition is approved and an administrator is appointed, the court issues letters of office, which grant you proof of legal authority and power to access medical records, bank accounts, and most importantly, start the lawsuit. If deemed necessary, a co-representative may be appointed if there is no will.
- Step 3: Formalize the Estate
Now that you have the authority to file claims and the estate is open, you need to file an Affidavit of Heirship and publish a Notice to Creditors. This can be quite complex, and creditors may come for the Estate even years later to take a piece of your settlement if you do not follow specific “notice by publication” rules. Having an attorney ensures this process goes smoothly.
- Step 4: File the Lawsuit
You can go ahead and file a wrongful death claim and a survival action. These must be filed within 2 years of the incident to comply with Illinois’ Statute of Limitations. You may do this step at the same time as step 3.
These four steps can take a lot of time and vary depending on the court and the complexity of the situation. Getting an attorney involved early can remove a lot of stressors. This includes minimal contact with annoying court processes, ensuring you avoid errors in your petition and other required filings, which can delay your issuance and cause you to miss deadlines, as well as coordinate probate and injury claims that may quickly become complicated.
Who Actually Gets the Money
Another uncomfortable, but important question. How do you receive compensation if your lawsuit wins? Who receives the compensation?
- Primary beneficiaries:
The answer to this question varies depending on who the primary beneficiaries are. This is typically the next of kin in a wrongful death lawsuit. The hierarchy starts at the loved one’s spouse, children, parents, and then siblings if there is no surviving spouse or child. If the primary beneficiary is an adopted relative, such as an adopted child or parents, in the eyes of the law, they are seen as the same as a beneficiary who is a biological relative.
- How courts decide who gets what: Financial dependency and closeness of relationship, not just who’s grieving most
The court decides who receives compensation based on financial dependency and the nature of the relationship you had with the deceased. This can be a spouse, adult child or parent relying on income, even if it is shared income. Frequency of contact can also play a factor. This means that, unfortunately, if you have no legal or recognized familial ties to the lost loved one, you may not be eligible for compensation.
- Survival action payouts go through probate; wrongful death payouts go directly to beneficiaries
If a survival action recovers compensation for damages, then that compensation will go to the estate of the deceased and go through the probate process. This means the compensation will pay for any debts owed by the deceased, bank accounts owned, or expenses caused by the loss, such as burial and medical bills. Any remaining money will be distributed according to the will of the deceased or under Illinois intestacy law if no will exists.
If your wrongful death claim recovers compensation for damages, then the payout will go directly to a primary beneficiary such as a surviving spouse or other next of kin. This means that even if you are named in the will as an executor or beneficiary who is not next of kin, you may not receive a wrongful death payout. This directly compensates the closest living relative or spouse for losses caused by the death itself, as approved by the court. Probate is not involved, and the money is not subject to the debts of the deceased.
- What if you’re a more distant relative, such as a grandparent, aunt, or cousin?
In Illinois, when it comes to a wrongful death case, the court looks at who is named in the will or qualifies as next of kin, determined by state law, and who suffered the greatest financial and relational loss. This can mean, for example, if there is a surviving spouse and one surviving grandparent, then the next of kin would be the surviving spouse and primary inheritor under Illinois law. Depending on the situation and the nature of the relationships, the grandparent may still qualify for some share.
If there is a case settlement and there is general agreement on who receives compensation, then the proposed distribution is typically submitted to the court for approval. If there is disagreement on who receives the payout, then that’s when the court tends to step in more and may hold a hearing to decide on who receives compensation.
If you are a more distant relative, such as a cousin, aunt, or even an unrelated best friend named in the will, you could receive money from the survival action if the will says you are entitled to it. Unfortunately, you are legally ineligible to receive money from the Wrongful Death claim.
Has a Loved One Been the Victim of a Wrongful Death?
What You Can Recover
- Economic: This may be the income the lost loved one would have received, including pension contributions, medical bills, and funeral expenses. Even the value of household chores or childcare, they would have acted upon.
- Non-economic: Illinois law explicitly allows family members to recover from grief, loss of companionship, loss of a parent’s guidance, and emotional and mental suffering.
- Survival action damages: These are for what the deceased went through before they died and thus are calculated separately. This may include medical expenses, physical pain and suffering they felt, emotional distress, and lost wages.
- Caps on Damages: Generally, in Illinois, there are no caps on compensatory damages in most Illinois wrongful death cases, with one exception:
- Claims against a government entity: For example, if you are suing the state of Illinois, it becomes a claim against a government entity, and cases are heard in the Illinois Court of Claims. There are potential limits under the Tort Immunity Act if you sue a city or county as well.
These values are calculated by juries given specific instructions called “Pattern Jury Instructions” to assist them in determining a number. They are told to consider the deceased’s age, health, occupation, how hard they worked, and the nature of the relationship they had with the beneficiaries.
Deadlines and When They Don’t Apply
- Statute of Limitations: Family members have two years from the date of death to file a lawsuit.
- Molly’s Law exception: This 2016 law extends the deadline by up to five years if the death was caused by a violent, intentional act, or one year after the criminal case ends, whichever is later. This extension only applies to the person who committed the act, not other third-party defendants.
- Tolling for minors and people under legal disability: If the primary beneficiary is under 18, the clock is paused until they turn 18. From their 18th birthday, they have two years to file. This applies to individuals with legal mental disabilities as well.
- Why waiting is a bad idea, even if you have time: Despite the fact you have two years, an attorney should act within the first 30 days. This is because evidence expires. Surveillance footage always has an expiration date, important witnesses move, memories get weaker, and physical evidence can be cleaned up within a week.
How the Process Actually Works
All of the nuances can get confusing. If you decide to go with Shuman Legal, we can ensure you a smoother process due to our experience, resources, and knowledge. This is how your case process typically begins:
- Gathering Documents: Your attorney may obtain the death certificate, medical records, police reports, financial records, cell phone records, and any evidence of negligence.
- Open the Estate: Follow the four practical steps earlier in the article. Without a petition filed in probate court to appoint a representative, you cannot legally file a lawsuit.
- Demand phase: Your attorney investigates, identifies who’s liable, and sends demands to the insurance company.
- If Settlement is Unfair: If a fair deal cannot be reached, a formal complaint is filed. Defendants must be served, and the case goes through discovery where both sides must turn over all evidence and prepare for depositions.
- Resolution: A lot of cases settle during or after discovery before it reaches the point of a jury trial. At every stage, an experienced attorney earns their keep here by deciding whether to settle or keep fighting to make sure you receive your deserved compensation.
Common Situations That Lead to These Claims
Everyone’s situation is different, but you are not alone in your efforts to seek eligibility.
Claims are typically filed due to:
- Car Accidents: Liability is found when a driver does not follow the rules of the road, even if it was an accident; this is a common cause of fatality.
- Medical Malpractice: Medical providers must follow high standards of care. When a doctor or hospital does not follow procedure and protocol, differing from what a competent professional should do and causing death, then liability is created.
- Nursing Home Neglect: Liability occurs when a nursing home fails to provide proper supervision, medical care, or hygiene.
- Defective Products: If you find a product used and caused a deadly situation, and lacked proper warnings, the manufacturer is often responsible.
- Dangerous Areas: Premises liability occurs when property owners fail to maintain a safe environment, such as a broken staircase in your workplace, causing a fatality.
- Violent Crimes: This happens when the perpetrator is criminally liable, including deadly domestic violence. There may be further negligence when an establishment fails to provide security, allowing the crime to occur.
- Workplace Accidents: While loss of life in a workplace typically falls under workers’ compensation, liability suitable for a wrongful death claim is created if a third-party contractor or equipment negligence caused the death.
Speak with an experienced attorney today to find out how we can further assist you in this difficult time.
This Isn’t Just About the Money
Filing a claim holds the person or company at fault accountable. You do not have to choose between justice and financial stability to find peace. We know how hard it can be to navigate these tough processes alone, and it’s okay to need support while doing it.
