The Difference Between an Illinois Wrongful Death vs. Survival Action

Under Illinois law, the wrongful death statute creates a claim that the victim’s surviving spouse or the deceased’s (referred to as decedent) next of kin may file in court. Such a case would seek emotional and monetary damages suffered as a result of the death of the loved one. As in other parts of the country, Illinois law provides for two separate but related parts to a personal injury lawsuit that resulted in a wrongful death: the survival action and the wrongful death action. Damages awarded to a plaintiff who is successful at establishing the elements of a wrongful death suit – as well as any settlement provisions agreed upon during negotiations – are determined based on how the wrongful death suit is brought in court.

Illinois’ Probate Law

Illinois probate law governs claims brought under the wrongful death act. The process by which the court determines how a decedent’s real and personal property should be distributed is detailed under the state’s probate law. The decedent’s estate, with the help of an appointed administrator, files the wrongful death claim in court on behalf of the decedent’s surviving family members. This is done at the same time the administrator requests a special administration of the decedent’s estate in probate court. Because these cases involve both personal injury and probate law, they can be complicated.

Wrongful Death Action

The wrongful death action seeks compensation on behalf of the decedent’s estate – and surviving family members – for damages suffered by those left behind as a result of the death. The purpose of monetary damages in a wrongful death lawsuit is to provide support for those left behind, referred to as the victim’s next of kin and determined by the court. Monetary compensation may be awarded by a judge in a successful wrongful death action and can include past and future economic support, loss of society, and grief and suffering. In a wrongful death action, damages awarded are paid directly to the surviving next of kin.

Survival Action

Unlike a wrongful death action, the survival action seeks monetary compensation for damages suffered by the decedent prior to his or her untimely death. Said differently, these damages were incurred during the time period after the accident but when the victim was still alive. Accordingly, they are often pursued to cover expenses already incurred as a result of the accident. A court may award damages in a survival action to cover medical expenses, disability, lost wages, as well as pain and suffering. Instead of damages being paid directly to the next of kin like in a wrongful death action, damages awarded in a survival action are paid out to the decedent’s estate.

Schedule a Consultation Today

If someone you know or love has tragically passed due to the negligence or wrongdoing of another, contact a Rockford area wrongful death attorney today for an initial consultation. Structuring a wrongful death and survival action claim can be complicated, as no two wrongful death lawsuits are alike. The skilled personal injury lawyers at Brassfield & Krueger, Ltd. can guide you through this difficult time and help to obtain the compensation to which you may be entitled.