If you lose a loved one, you might have certain legal options for compensation, depending on the circumstances. A wrongful death claim may be necessary if your loved one passed away because of someone else’s negligence, but a survival action might be important for other losses.
Wrongful death claims and survival actions are filed after someone dies but are legally distinct claims. Generally, a personal representative of the deceased person’s estate must file both types of claims. Possible claims for wrongful death include personal injuries that ultimately caused death. Possible survival actions include various personal injuries unrelated to the cause of death, actions related to property, and more. Both claims typically adhere to a 2-year statute of limitations, although your specific deadline might differ. While damages might overlap, wrongful death damages are related to the family’s losses, while survival action damages are related to the deceased person’s injuries. Evidence should show the nature of the injuries and how they were caused. Many families file both claims to get the most compensation possible.
Schedule an evaluation of your claims with our Chicago wrongful death attorneys by calling the Rhatigan Law Offices at (312) 578-8502.
What Are Survival Actions Compared to Wrongful Death Claims in Illinois?
Wrongful death claims and survival actions are often conflated with each other, and plaintiffs sometimes assume they are one single claim. While survival actions often accompany wrongful death claims and share certain elements, they are legally separate and distinct claims.
According to 740 I.L.C.S. § 180/1, a wrongful death lawsuit may be filed if a person passes away because of a wrongful act committed by another. The wrongful act is often an act of negligence, but it might also consist of a wrongful omission or failure to act, or an intentional act. Generally, a wrongful death claim applies to cases where the deceased person would have had a valid personal injury lawsuit on their hands if they survived. One key aspect is that the injuries sued for in a wrongful death lawsuit must have caused the person’s death.
A survival action is similar to a wrongful death claim but applies to different circumstances. Under 755 I.L.C.S. § 5/27-6, a survival action applies to certain claims that survive after the passing of the claimant. What is important to remember is that the claims in a survival action are not related to the cause of death. For example, if your loved one was hurt in a car accident but passed away after a heart attack 6 months later, our Naperville, IL wrongful death attorneys could initiate a survival action for the car accident. On top of that, various claims the deceased person might have had, not just personal injuries, may survive their passing.
Who Files Wrongful Death Claims and Survival Actions in Illinois?
The people filing a survival action or wrongful death claim are actually the same person. In both cases, the personal representative of the deceased person’s estate files the lawsuit. The personal representative may be named in the deceased person’s will and is often a family member or close friend. You can ask the court to appoint a personal representative if the deceased person did not leave a will.
While a personal representative files these claims, they are not necessarily getting any compensation or damages. In a wrongful death claim, many damages are paid to surviving family members to compensate for their losses. In survival actions, damages are paid to the deceased person’s estate because the injuries or losses being sued for were experienced by the deceased person, not their family. The personal representative might not even be a beneficiary in the case.
A personal representative might not be needed if the deceased person was a child since most children do not have estates or wills. Instead, the child’s parents or legal guardian may file a wrongful death claim or survival action.
It is also important to note that the personal representative is not necessarily a lawyer. You should hire an actual attorney to help you with your claims, but the authorization of a personal representative might be required to get the case started.
Possible Claims for a Survival Action and Wrongful Death in Illinois
Claims for survival actions and wrongful death sound somewhat similar. They both tend to involve claims or injuries that the deceased person could have sued for themselves if they were still alive. However, you should be aware of several important distinctions between these claims before filing a case.
Wrongful Death Claims
According to the statute for wrongful death claims, a claim may involve injuries or losses the deceased person could have sued for if they had survived the accident. This might include property damage, medical bills, pain, suffering, and other injuries and losses.
For example, suppose your loved one passed away in a car accident. You may claim the value of their damaged vehicle, medical expenses from the emergency room, and the pain and suffering they might have endured after the accident as part of your damages. These damages will vary depending on how your loved one passed away.
The statute for survival actions spells out several specific claims that survive if the claimant passes away. Contrary to wrongful death claims, many possible claims in a survival action do not involve personal injuries, although various personal injury claims are possible.
You may claim an action of replevin as part of a survival action. A writ of replevin applies to cases where goods or property seized as part of some other legal action are restored to the owner pending the outcome of a hearing or proceeding to determine the rights of the parties to the replevin case. If your loved one was waiting on seized items to be returned before they passed, you can raise this claim in a survival action.
You can also file a survival action for damage to real or personal property. For example, if someone damaged your loved one’s home while they were alive, but your loved one passed away before they could take legal action, you may raise the claim for property damage in a survival action.
Some other less common survival action claims include actions against government officers (e.g., police, sheriffs, government officials) for misfeasance, malfeasance, or nonfeasance. You can also claim actions for fraud. However, you cannot raise claims for slander or libel, as the statute specifically excludes these claims.
When to File Your Illinois Wrongful Death Claim or Survival Action
The statute of limitations is the law that determines when a plaintiff must file their case. The plaintiff might lose their right to file the claim if the deadline passes. The statute of limitations in wrongful death claims in Illinois can be found under 740 I.L.C.S. § 180/2(d). You have 2 years from the date of your loved one’s passing to file a wrongful death claim.
Remember, the deadline begins to run on the date of your loved one’s passing, not necessarily the day they were injured. If your loved one were hurt in an accident but did not pass away for several weeks, the statute of limitations would not begin counting down until the date of death, not the date of the accident. Survival actions typically adhere to the 2-year statute of limitations as well.
In some cases, plaintiffs may have the deadline to file extended. For example, if you were a minor when your parent passed away, and there is no personal representative to file the claims for you, you might be unable to do so yourself. In that case, our Rockford, IL wrongful death attorney can help you argue to have the statute of limitations tolled until you are no longer a minor so you can file the claim yourself.
Damages Available in Survival Actions and Wrongful Death Lawsuits in Illinois
In short, damages in a wrongful death lawsuit focus on the injuries that caused the deceased person to pass away. Meanwhile, damages in a survival action are based on injuries or losses from events or accidents separate from your loved one’s passing.
In a wrongful death lawsuit, damages stem from the injuries for which the deceased person could have claimed if they survived and the losses sustained by their family. For example, you could sue for the medical bills and pain and suffering your loved one experienced before they passed away from a car accident. You can also claim the loss of consortium, financial support, and companionship your loved one provided you and your family.
Damages in a survival action are not concerned with losses suffered by the deceased person’s family. A survival action is solely about the injuries and losses experienced by the deceased person. Additionally, damages are limited to whatever claims the deceased person could have brought themselves that are unrelated to their cause of death.
In a wrongful death claim, damages are distributed among eligible beneficiaries. Beneficiaries include surviving spouses and next of kin. Damages are distributed in proportion to each beneficiaries loss based on their dependency on the deceased person. The court ultimately determines these proportions. In a survival action, damages are distributed to the deceased person’s estate and distributed according to a will. If there is no will, compensation is distributed according to intestacy laws.
Evidence Necessary to Prove Wrongful Death Claims and Survival Actions in Illinois
The evidence you need differs between these two claims, and in both situations, the evidence will be unique to the case. Because your loved one is no longer here to advocate for themselves, we need the strongest evidence possible to win the case.
In a wrongful death lawsuit, the evidence should revolve around your loved one’s cause of death. If they passed away after an accident, we need their medical records that depict their injuries and explain how the accident led to their passing. Explaining the medical side of your case may be difficult, and an expert witness might be very helpful if not totally necessary. The expert will likely be a doctor who can explain your loved one’s injuries and how they contributed to their death.
We also need information about the accident that connects the defendant to the case. For example, after a car accident in which our loved one did not survive, we need evidence showing that the defendant was the one driving the other car. We also need to prove how the defendant’s negligence caused the accident in the first place.
Photos and videos from the scene of the accident and witness testimony are of paramount importance in wrongful death claims.
Survival actions require evidence unique to the claim that survives the claimant. For example, if the survival action involves property damage, records of the damage, photos, and witness testimony may be important. Since the claimant is gone, records of the claim, if any exist, are very important. No evidence about the deceased person’s cause of death is necessary.
Should I File Both a Survival Action and a Wrongful Death Claim in Illinois?
It is not unusual for wrongful death claims and survival actions to be filed together, although they do not always need to be filed together. If your loved passed away by some wrongful or negligent act, and you know of an injury, loss, or legal claim they had before they passed, you should speak to an attorney about getting both cases filed as soon as possible.
Alternatively, you might only need to file one claim or the other. For example, perhaps your loved one passed away, and some cause of action survives their passing, but their death was not wrongful. In that case, a survival action may be necessary, but a wrongful death claim would not. On the other hand, you might file a wrongful death claim, but your loved one had no legal claims that survived their death.
Call Our Illinois Wrongful Death Attorneys for Help
Schedule an assessment of your claims with our Joliet, IL wrongful death lawyers by calling the Rhatigan Law Offices at (312) 578-8502.