Wrongful Death Lawsuits in Illinois Are Comprised of Two Separate Actions

Wrongful death occurs when negligent or careless conduct results in the death of another person.

Consider the following wrongful death scenario: A young father was stopped at a red light at the intersection of East State Street and Perryville Road in Rockford, when an SUV, driven by a distracted driver, plowed into the back of his motorcycle. He suffered catastrophic injuries, spending three weeks in intensive care at Swedish American Hospital before he died.

In this case, two actions may be brought against the negligent driver in a wrongful death suit: the survival action and the wrongful death action. So, what is the difference between the two actions under Illinois law?

Survival Action

The survival action is the portion of the lawsuit that covers damages that occurred before the accident victim died—including medical bills, lost wages, disability, disfigurement, and conscious pain and suffering. Because these losses occurred before the victim died, damages are considered an asset of the deceased victim’s estate and are distributed according to the terms of his will. If there was no will, asset distribution is administered and processed according to the rules of descent and distribution in the Illinois probate code.

Wrongful Death Action

The wrongful death action is the portion of the lawsuit brought by the deceased victim’s estate on behalf of the surviving next of kin to help compensate for damages including loss of society, loss of economic support, and grief. Because damages related to the wrongful death action are for losses suffered by the next of kin—not the deceased victim—the damages are paid directly to the surviving next of kin and do not become part of the deceased victim’s estate.

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