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Wrongful Death

The basics of wrongful death in Illinois 

If you have lost a loved one, we are deeply sorry for you. Nothing can replace your loved one, and that is the greatest truth. This is likely the most emotionally painful experiences in life. If your loved one died because of someone else's carelessness, anger and resentment are added to your grief. Aside from the emotion distress, you are likely experiencing the fear and stress of paying for the loved one's unexpected losses and expenses that can hinder you from moving on with your life.

Nothing can bring your loved one back, but Illinois law allows you to recoup the expenses from the responsible party through a wrongful death claim or lawsuit. The purpose of this type of lawsuit is to allow the spouse or next-of-kin to recover compensation for the losses suffered by the death. Additionally, wrongful death claims allow certain other types of recoveries.

Top Five Facts You Should Know About Wrongful Death

In Illinois, there are specific facts you should know about wrongful death. These are the top wrongful death facts you should know about wrongful death cases in Illinois. 

1. Illinois Wrongful Deaths are Governed by Statute.

In Illinois, when a loved ones dies because of the wrongful act of another, a specific statute controls (740 ILCS 180/1). This law explains how the family of the deceased person may recover for damages. The statutes outlines who has a right to share in the recovery and who can bring a claim on the family's behalf.

2. The death claim has to have a representative for the deceased person.

A wrongful death claim must be brought by a “personal representative” of the deceased victim. Usually, the representative will be a family member like a parent, a wife, a sibling, or an adult child. This representation controls the major decisions of the case, including whether it is settled or goes to court. However, the representative does not necessarily have to be someone who will recover for the death. If the deceased person has minor children and the representative is a sibling of the deceased, the minor children will be entitled to the recovery.

3. The representative must file the claim within a certain period of time.

A claim for wrongful death arises upon the death, but you have to file a lawsuit within one or two years of the date of the death. In the legal field, this time period is known as the statute of limitations. Normally, this time period is two years, but there are exceptions. Specifically, the time period can be shortened when the government is involved in the death.

4. In Illinois wrongful death claims, you are entitled to recover specific damages.

Money damages are meant to provide a recovery for the loss. There are several types of damages available. The types of damages include:

Economic losses in the past and future. Economic harms are compensable for the family of the deceased. This type of compensation is for the lost income or wages the deceased person would have earned during his or her life. It includes past wages and future wages and benefits.

Burial and Funeral Expenses. Even though everyone has to die at some point, the burial and funeral expenses are recoverable because that funeral occurred earlier than it was supposed to.

Loss of Society. This category of damages involves the loss of love and affection the family had with the deceased. Illinois doesn't cap damages so it will be up to a jury or trier of fact to determine what the value of that loss of society. One school of thought is the closer the family, the larger the award for loss of society.

There are additional types of damages and you should consider speaking to a personal injury lawyer about your individual case if you have specific questions about a recoverable damage. Most, include our firm, give free consultations.

5. You prove the death was “wrongful” by applying personal injury rules and laws

Once a wrongful death claim is asserted, it is up to the representative to explain why the death was wrongful. This requires an understanding of personal injury law. Obvious cases involve car wrecks where the other driver was at fault. More difficult cases come from medical malpractice, cases involving the government, or defective products cases. No matter how your loved one died, Illinois law imposes the burden on you to show the court or the jury why the death was wrongful. A personal injury law firm can assist you in proving the death was wrongful.

Additional Information about Illinois Wrongful Death

Who is eligible to recover in a wrongful death lawsuit?

Under the Wrongful Death Act, the children and surviving spouse are eligible to file a lawsuit and recover damages. If the deceased person did not leave a spouse or children, other family members such as parents or siblings of the deceased, may file the lawsuit or bring the claim. The lawsuit itself is filed in the name of the representative of the decedent's estate. This representative has the duty to represent the family. In some cases, the representative is a friend of the decedent.

What situations are appropriate for a wrongful death lawsuit?

Wrongful death lawsuits can be filed in any situation when a person dies because of another action or inaction which you consider negligence or reckless. These situations commonly include deaths from dangerous products, negligent hospitals and doctors, car or truck wrecks, drunk drivers, dangerous conditions on another property, and actions by the government. Corporations, local governments, school districts, product manufactures, and individuals can all be sued for wrongful death in Illinois.

Does a criminal charge hurt or help my wrongful death case?

In some cases, the person, corporation or government actor causing the death commits a crime. Crimes can affect the wrongful death case in positive and negative ways. First, a crime, which results in a criminal conviction can be used in the wrongful death case to prove the case. Think about a drunk driver who kills a loved one. If that person pleads guilty, he or she is essentially admitting to killing your loved one. In that way, a criminal charge can be helpful in proving the wrongful death. Keep in mind whether or not criminal charges are filed does not affect the right to file a wrongful death lawsuit. Also, it doesn't matter whether that criminal charge (if brought) is successful. Think about O.J. Simpson. He was acquitted of criminal wrongdoing, but his late wife's family successfully sued for wrongful death. Additionally, whether the responsible party is found guilty or acquitted of the criminal charges does not influence the outcome the lawsuit, as it is a civil matter that has different standards of proof.

A criminal charge can negatively impact your potential wrongful death case in terms of insurance coverage. If the action that caused the death is deemed criminal and an insurance policy may cover all or part of the claim, the insurance policy may try to avoid covering the loss. Please note in the example of a drunk driver, the auto liability insurance company cannot avoid paying because the driver was drunk.

As you can see, there are many nuances to wrongful death law in Illinois, and you should reach out to a personal injury law firm to address any specific questions or concerns you may have.

How are the damages of a wrongful death case divided?

Any damages recovered in a wrongful death lawsuit or claim are distributed to the eligible family members by the court and pursuant to Illinois law. Certainly, spouses and minor children take the priority. When the deceased has left surviving children, those children have the right to take the wrongful death award. In cases where there are no surviving children or a spouse, the parents of the deceased and siblings have a right to the award. Where the law is silent between classes and does not provide a formula for determining the distribution, the court has discretion. For instance, a court may decide to give less to an estranged adult child in a wrongful death case. In many cases, the court will split the proceeds evenly amongst the classes of those who are entitled to receive said money.

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