Who Gets the Money in a Wrongful Death Lawsuit?

If a loved one dies as a result of someone else’s actions, there may be grounds for a wrongful death lawsuit, which is intended to compensate survivors for the loss of their family member. When our Chicago wrongful death lawyers speak with clients, they often ask how the proceeds from such a suit – if successful – would be split among survivors. That’s a good question, and one that’s answered by several Illinois laws.

Wrongful Death Lawsuit Basics

wrongful death lawsuit is a type of personal injury lawsuit that can be brought against a person or organization whose actions, inactions or negligence caused the death of another individual. For example, if a drunk driver caused an accident that killed the driver of another car, there would be grounds for a wrongful death lawsuit against the drunk driver. Likewise, if a doctor committed medical malpractice and a patient died as a result, then there would be grounds for a wrongful death lawsuit against the doctor.

The Illinois Wrongful Death Act and Illinois Survival Act empower the deceased person’s estate to file a lawsuit against those responsible for the death (the plaintiff).

If a wrongful death lawsuit is successful, compensation (also known as damages) falls into two broad categories:

  • Compensation for pain and suffering, medical expenses, lost wages and other losses that the deceased person incurred after the injury but before death. Illinois personal injury law allows an individual to recover these damages if he or she has been injured as a result of another party’s actions, inactions or negligence.
  • Compensation for the death of the individual as a result of another party’s actions, inactions or negligent behavior. While money cannot bring back a deceased family member, these damages are intended to compensate for the loss of the individual’s salary, employment benefits and contributions around the house (such as cooking, cleaning and driving kids to school).

Illinois Survival Act Claims

If an individual dies before pursuing a personal injury lawsuit against the person or organization ultimately responsible for his or her death, then the estate – acting on behalf of the deceased individual – can file a lawsuit to collect damages.

Under the Illinois Survival Act, any compensation from this claim is paid to the estate. It is then distributed to beneficiaries according to the instructions the deceased person set out in his or her will. For example, if the deceased person is survived by a parent, who’s receiving 70 percent of the estate, and a sibling, who receives the remaining 30 percent, then the damages would be added to the other assets and distributed in those same proportions.

If the individual died without a will – known as dying intestate – then Illinois’ law dictates how the estate is distributed. Specifically if the deceased individual has:

  • A spouse but no children: The spouse inherits the entire estate.
  • A spouse and children: The spouse receives 50 percent of the estate and the remaining 50 percent is divided equally among the children. (Grandchildren will receive a share of the estate if their parent – the deceased person’s child – died before the deceased individual.)
  • Children but no spouse: The estate is divided equally among the children.
  • Parents but no spouse, children, grandchildren or siblings: The parents inherit the entire estate.
  • Parents and siblings, but no spouse, children or grandchildren: The estate is divided equally among each person, however, if one parent is deceased then the other parent receives a double share of the estate.
  • Siblings but not parents, spouse, children or grandchildren: The estate is divided equally among each sibling.

Illinois Wrongful Death Act Claims

Compensation received under the Illinois Wrongful Death Act is distributed differently from the Survival Act compensation. Under Illinois law, only the deceased individual’s spouse and children may recover damages in a wrongful death claim.

Although the estate is responsible for filing the wrongful death lawsuit, the wrongful death damages do not get paid to the estate. Instead, the court hearing the lawsuit has the authority to determine how the money is divided between the spouse and children. Specifically, the law states:

“The amount recovered in any such action shall be distributed … 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 other words, the court looks at how much each family depended financially on the deceased person and then attempts to divide the money proportionately. For example, if a father was paying for his adult child’s education, that child might receive more money than a sibling who was not financially dependent on his or her father.

Although it might seem unfair, under Illinois law other family members, such as parents or siblings, are not entitled to wrongful death compensation. It’s also important to understand that wrongful death compensation laws vary from state to state, meaning that different distribution formulas may apply if the deceased person died outside of Illinois.

Pursuing an Illinois Wrongful Death Claim

If your family member died in a motor vehicle accident, as a result of a defective product, because of nursing home negligence or medical malpractice, or in another type of accident, contact the Chicago wrongful death lawyers at Cogan & Power today at (312) 477-2500.