The short answer

In Illinois, a wrongful death lawsuit is filed by the personal representative of the deceased person’s estate, and by no one else. The Wrongful Death Act is explicit: “Every such action shall be brought by and in the names of the personal representatives of such deceased person.”

That surprises families, because the person who files is often not the person the case is really for. The representative is a legal role, essentially a trustee for the claim. The recovery belongs to the surviving spouse and next of kin, and the Act says so in the same breath: the amount recovered is “for the exclusive benefit of the surviving spouse and next of kin of such deceased person.”

Two separate questions

Almost every misunderstanding here comes from collapsing two questions into one. Keep them apart:

Who counts as next of kin

The Act does not hand you a numbered list. In practice Illinois works outward through the nearest surviving degree of kinship, so a surviving spouse and children come first, then parents and siblings where there is no spouse or child, and so on. Nearer relatives exclude more distant ones rather than sharing with them.

Two points worth stating plainly:

• Adult children are next of kin. There is no requirement that a child be a minor or financially dependent to be included.
• An unmarried partner is not a surviving spouse, however long the relationship. Illinois does not recognize common law marriage entered into in this State.

Where family structure is complicated, by estrangement, remarriage, stepchildren or a pending divorce, who qualifies is worth resolving early. It changes both the case and its distribution.

Not equal shares: dependency decides

This is the provision most families have never heard, and it is the one that determines what anyone actually receives.

Under 740 ILCS 180/2(b), the recovery is distributed by the court “to each of the surviving spouse and next of kin of such deceased person in the proportion, as determined by the court, that the percentage of dependency of each such person upon the deceased person bears to the sum of the percentages of dependency of all such persons upon the deceased person.”

In plain terms: the court weighs how dependent each person was on the person who died, then divides the money in those proportions. A spouse and a young child at home will usually be weighted very differently from an independent adult child living elsewhere. It is not automatically an even split, and a settlement cannot simply be divided by agreement without the court’s involvement.

What the claim is worth compensating

Damages are measured “with reference to the pecuniary injuries resulting from such death.” That phrase sounds purely financial, and for a long time it was read that way, but the Act now says expressly that those damages include “grief, sorrow, and mental suffering” for the surviving spouse and next of kin.

Punitive damages are available in some wrongful death actions, for conduct that warrants them. The Act carves out important exceptions: they are not available in an action for healing art malpractice or legal malpractice, nor against the State, a unit of local government, or their employees acting in an official capacity.

A wrongful death claim also commonly runs alongside a survival action under 755 ILCS 5/27-6, which carries forward the claim the person had for their own injuries between the incident and their death. The two compensate different losses, so they are usually brought together.

What happens when the family does not agree

Disagreement is common and it does not stop the case. It usually surfaces in one of three places.

• Who should be appointed. More than one family member may want the role, or nobody may want it. The court decides, and a dispute here is worth resolving before the claim is filed rather than during it.
• Whether to settle. The representative brings the action, but the recovery belongs to the beneficiaries, so a settlement is subject to court approval rather than being the representative’s decision alone.
• How it is divided. Because the split turns on dependency rather than on equal shares, beneficiaries can have genuinely competing positions. Where those conflicts are sharp, separate counsel for a beneficiary is sometimes appropriate.

None of this is a reason to delay. The deadline runs while the family works it out, and an unresolved appointment has ended more claims than an unresolved dispute about money.

If there is no spouse and no next of kin

The Act addresses this directly at 740 ILCS 180/2(c). Where the deceased left no surviving spouse or next of kin entitled to recover, the damages inure to those who provided hospital services and medical or surgical services in the last illness or injury, subject to statutory caps of $450 for each category, and to the personal representative for the costs of administering the estate and pursuing the claim, including a reasonable attorney’s fee. The measure of damages in that situation is limited accordingly.

Two claims, and they pay different people

Because a survival action and a wrongful death action are usually filed together, it is worth being clear that they do not benefit the same people in the same way.

• The wrongful death claim compensates the surviving spouse and next of kin for what the death cost them. It is distributed by dependency and does not pass through the estate to creditors.
• The survival claim belongs to the estate. It carries the claim the person had for their own pain, medical bills and losses between the injury and their death, and it is administered as an estate asset.

The distinction becomes practical when the estate has debts, or when the people named in a will are not the same as the next of kin. Which recovery an item of damage belongs to is a question worth getting right early rather than at settlement.

Starting without an open estate

Families often assume probate has to be completed before anything can happen. It does not. Under 740 ILCS 180/2.1, where the only asset of the estate is the wrongful death claim itself and no petition for letters of office has been filed, the court may appoint a special administrator for the purpose of prosecuting the action, without opening an estate.

That route exists precisely so a claim is not lost while a family deals with probate. We cover the representative’s duties in more depth in our post on what a personal representative does.

The deadline

A wrongful death action must generally be commenced within two years after the death, under 740 ILCS 180/2(d). Two exceptions matter:

• Five years, or one year after the criminal case ends. Under 740 ILCS 180/2(e), where the death results from violent intentional conduct and the defendant is charged with certain offenses including first degree murder, the action may be brought within five years of the death, or within one year after final disposition of the criminal case.
• One year against a public body. Where a local public entity or its employee is a defendant, 745 ILCS 10/8-101(a) applies.

Часто задаваемые вопросы

Talk to an Elmwood Park wrongful death lawyer

The first questions in these cases are structural rather than emotional, which is part of what makes them hard: who will be appointed, who qualifies as next of kin, and whether a special administrator is the faster route. They are answerable quickly, and answering them early protects everything that follows.

If you lost someone in Elmwood Park, Oak Lawn, Skokie, Niles, Orland Park or anywhere in Cook County, Lawyer Furqan will explain who can bring the claim in your family’s circumstances and what the distribution is likely to look like. Deaths following a car accident, a truck accident or a medical error each raise different proof questions.

Call 847-800-8978 or contact us online. The consultation is free, there is nothing upfront, and you owe no attorney’s fee unless we win.

Sources and authorities cited

• 740 ILCS 180/1 · the wrongful death cause of action
• 740 ILCS 180/2 · who brings the action, exclusive benefit of the spouse and next of kin, dependency-based distribution, the no-next-of-kin rule, and the two-year and five-year deadlines
• 740 ILCS 180/2.1 · special administrator where the claim is the only estate asset
• 755 ILCS 5/27-6 · survival of actions
• 745 ILCS 10/8-101(a) · one-year limitation, local public entities

This article is general legal information about Illinois law, not legal advice, and creates no attorney-client relationship. Who may bring a claim and how a recovery is divided depend on the facts of each case, and nothing here predicts a result.